Can I register an Ante-nuptial Contract (ANC) after I am married?
22 May 2017

– Summary

It is a complicated, difficult and costly process to register an ante-nuptial contract after you are married. We explain the process here.

We must begin by saying that if you want to be married WITH an ante-nuptial contract (ANC) and OUT of community of property, it is without a doubt best (and cheaper) to attend to register the document BEFORE you are married.

However, if you are married WITHOUT an ANC there is a mechanism to register an ante-nuptial contract after the marriage and change your marital property regime; for this article, we will refer to such an agreement as a post-nuptial contract (PNC).

Topically, you will sign an ante-nuptial contract before you get married, if you do not, the Matrimonial Property Act makes provision for a couple to jointly apply to the High Court rectify the situation.  If you fail to sign an ante-nuptial contract, you are automatically married IN community of property.

Below are some requirements to successfully register a post-nuptial contract and change your marital property regime:

Requirements for application

Formal Application

A formal application to the High Court, with supporting documentation, must be instituted to register the post-nuptial contract and change the marital property regime.

Intention

It must be clear the couple wanted to marry OUT of community of property before getting married.

Good Reason

You must provide reasons to the Court as to why you did not sign an ante-nuptial contract before you got married.

Acted Quickly

The couple must have acted with appropriate urgency to correct the fact that they got married without signing an ANC.

Ante-nuptial contract attached

A copy of the post-nuptial contract the parties intend to register must be attached to the application to Court.

Notice to Creditors

The creditors of both parties must be given adequate notice of the hearing of the application in Court wherein the intention is to register a PNC and change the marital property regime.

Letters need to sent to all creditors advising them of the proposed changes and advising them of the date for the hearing for the application.

Notice of the intended application must also be published in the  Government Gazette and local newspapers before the date of the hearing for the application.

Notice to Deeds Office

In addition to the creditors, it is necessary to advise the Deeds Office of the intended changes; the deeds office is where ante-nuptial contracts are registered.

Protection against prejudice

The Court must also be satisfied that no other person will be prejudiced by the intended changes.

Cost of the application

Unfortunately, the cost of registering a post-nuptial contract and changing your marital property regime can be expensive, and it will certainly be more expensive than registering an ANC before you get married.

The reasons for the extra cost are the additional steps required, which includes the drafting the application, drafting the intended PNC; notifying the creditors and the deeds offices; publishing the notice in the Government Gazette and newspapers; coordinately the various notices; attending to the hearing itself; etc.

Information we will need from you

You will need to prepare the following information if you would like us to assist with an application to register a post-nuptial contract and change your marital property regime.

  • Reasons an ante-nuptial contract was not registered before the marriage.
  • Full details of all existing creditors.
  • Full details of assets owned by both parties.
  • Copies of identity documents and marriage certificate.

DISCLAIMER: THERE ARE MORE CONSIDERATIONS THAN WE CAN COVER IN THIS ARTICLE SO ONLY USE THIS INFORMATION AS A GUIDE.   THIS INFORMATION DOES NOT CONSTITUTE LEGAL ADVICE.  IT IS ALWAYS BEST TO DISCUSS YOUR SITUATION WITH AN ATTORNEY; CONTACT US AT 0861 88 88 35helpdesk@gcm-legal.com AND THROUGH THE CONTACT FORM ON THIS PAGE.

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