POST-NUPTIAL CONTRACTS
Should you not execute an antenuptial contract prior to marriage, in terms of South African law, you will be deemed to be married In Community of Property.
Although you cannot execute an 'antenuptial' contract after your date of marriage, it is possible to change your matrimonial property regime from "in" to "out" of community of property by registration of a Post-nuptial Contract in terms of Section 21(1) of the Matrimonial Property Act (the “Act”). The effects of the contracts are the same; however, the procedure is different.
The procedure involves a joint application to the High Court by the husband and wife, requesting the Court to grant the parties leave to sign a Notarial Contract (having the effect of a post-nuptial contract), which after registration will regulate their matrimonial property system.
The Act provides the following requirements:
Sound reasons for the proposed change.
Sufficient notice of the proposed change must be given to all creditors and the Registrar of Deeds
The court must be satisfied that no other person will be prejudiced by the change.
In order to ensure that the application will not be opposed and that the court will consider the application, it is important to ensure that the following conditions are met:
Neither party is insolvent
Neither party has a judgment granted against him/her
No legal action is pending against either party
The cost of drafting and execution of the Postnuptial contract is the same as the cost of an Antenuptial Contract. However, the High Court application is costly as it includes legal fees, notice to the Registrar of Deeds and costs of the publishing notices in two newspapers and the Government Gazette. The costs may escalate in the event that the application is opposed, and the postage costs may vary depending on the number of creditors. The costs are generally estimated as follows:
Fee in respect of and incidental to taking instructions; Preparing Application in terms of Section 21(1) of Act 88 of 1984; Drafting Notice of Motion, Founding Affidavit and Supporting Affidavit, and attending to issue, service and filing thereof; Attending to signature of affidavits; Drafting Notice to creditors and attending to service thereof; Formal and non-formal attendances and all other attendances, consultations and correspondence.
R3,500.00
Postage and petties
R 230.00
Provision for S.21(1) Advertisements: local newspaper (1)
R1,500.00
Provision for S.21(1) Advertisements: local newspaper (2)
R1,500.00
S.21(1) Advertisement: Government Gazette
R 150.00
Deeds Office Report
R 500.00
Counsel’s Fee
R 750.00
Drafting of Antenuptial Contract, attending to execution thereof before Notary Public, and attending to registration thereof in the Deeds Registry
R 560.00
Deeds Office fee
R260.00
TOTAL
R8,950.00
Should you wish to proceed, the initial documents and information that we will require includes the following:
certified copies of ID documents;
certified copy of marriage certificate
certified copies of proof of address for yourself and your spouse;
date(s) of birth of any children born of the marriage;
income tax numbers;
occupations / job descriptions;
the reason that you did not execute an antenuptial contract;
the reason that you wish to now execute a post-nuptial contract;
details of any assets that you currently own (including movables, immovables, investments and cash); and
full details of all existing creditors (together with supporting documentation such as most recent statements, etc).
For further information, or should you wish to instruct us, please contact us via email:
info@easyonlinelegal.co.za.
