Postnuptial Contracts: It is not too late.

If you are already married — in community of property — you can still change your matrimonial regime. It requires a High Court application under section 21 of the Matrimonial Property Act 88 of 1984, and the process is more involved than signing an antenuptial contract before the wedding. But it is doable, and we handle these applications regularly.

What section 21 does

Section 21 allows the High Court, on application by both spouses, to authorise a change of matrimonial regime. Typically, this is from in community of property to one of the out-of-community options — either with or without the accrual system.

The court will only grant the order if it is satisfied that:

• Both spouses consent to the change — voluntarily and with full understanding
• There are sound reasons for the proposed change
• No creditor of either spouse will be prejudiced by the change
• Other persons potentially affected (such as children) are not unfairly affected

The process

1. Notice to creditors. The intended application must be advertised in the Government Gazette and in two newspapers, giving creditors an opportunity to object. The advertisements must run for a specified period before the court hearing.
2. Notarial postnuptial contract. A new contract is drafted, embodying the regime you want to move to (with or without accrual, with any specific exclusions).
3. Affidavits and supporting documents. Each spouse signs an affidavit setting out the reasons for the change, financial particulars, and confirming that no creditor will be prejudiced. Asset and liability lists are required.
4. High Court application. The papers are filed at the High Court with jurisdiction. If unopposed (no creditor objects, no other interested party intervenes), the court grants the order on the unopposed motion roll.
5. Registration. Once granted, the postnuptial contract is registered at the Deeds Office — just like an antenuptial contract.

Timeline and cost

Realistically, expect three to six months from instruction to registration, depending on court roll availability and creditor notice periods.

Cost is significantly higher than an antenuptial contract before the wedding because of the court fees, gazette and newspaper advertising, and the additional drafting work. We provide a quotation after assessing your circumstances on the intake form — typically several times the cost of a standard antenuptial contract.

Common reasons for postnuptial change

• One spouse is starting or expanding a business — the in-community regime is creating spousal-consent friction or risk exposure
• An inheritance is on the horizon — and the parties want to ensure it does not fall into the joint estate
• The couple have realised the in-community default does not match what they actually want — they would have signed an antenuptial contract had they understood it
• One spouse has built up significant assets — and both agree these should be ring-fenced going forward

What we need from you

• Both parties’ full names, ID numbers, and the marriage details
• A list of joint estate assets and liabilities, with values
• Reasons for the change — in your own words
• The new regime you want to move to (with or without accrual)
• Any specific assets you want excluded under the new regime

Related: In community of property · With accrual · Without accrual