Marriage and Matrimonial Property

 

 

Yes, but exceptions are limited and require a formal application to the High Court. The Court may grant an order to amend or rectify an ANC after marriage in specific circumstances, primarily:

  • To rectify a genuine error in the contract (though there is also a Deeds Registry process for this).
  • Where the contract does not accurately reflect the true intentions or agreement that the parties had before they got married.

The Court process is complex, requires valid reasons, and the Court will ensure that the rights of existing creditors or other third parties are not prejudiced.

Generally, no. Once an Antenuptial Contract has been registered in the Deeds Registry and the marriage has taken place, it cannot be amended or cancelled simply by agreement between the spouses (inter partes). This is a long-standing principle in South African law. Informal agreements or addendums signed after the marriage are typically not legally binding or enforceable as amendments to the ANC.

You can apply to the High Court to change your matrimonial property regime after marriage under Section 21(1) of the Matrimonial Property Act. This is a separate legal process from amending an existing ANC's specific clauses (like donations) after marriage. The Section 21 application also requires both spouses to agree, provide sound reasons, notify all creditors, and satisfy the court that no other person will be prejudiced. If granted, the court authorises the registration of a notarial contract that alters the regime. While related to property division during marriage, this is distinct from changing clauses within an existing ANC.

Yes, factual errors in a registered ANC can often be rectified after marriage without a full High Court application. This process is done by application to the Registrar of Deeds in terms of Section 4(1)(b) of the Deeds Registries Act. Examples of rectifiable errors include mistakes in names, identity numbers, dates of birth, or descriptions of property or policy numbers mentioned in the contract. However, this process is strictly for correcting genuine errors and cannot be used to change the fundamental conditions or terms that were agreed upon in the original contract.

The first and most crucial step is to consult with a qualified attorney specialising in family law or matrimonial property law. They can assess your specific situation, explain the applicable legal requirements and processes (either a High Court application for amendment/rectification or a Section 21 application to change the regime), advise you on the likelihood of success, and guide you through the necessary legal steps

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Amendments to Antenuptial Contracts

The Legal Understanding to Amending Your Antenuptial Contract (ANC) in South Africa

In South African law, "Amending Your Antenuptial Contract" refers to the legal process of altering the terms or conditions of an Antenuptial Contract (ANC). The legal definition and process differ significantly depending on whether the amendment is sought before or after the solemnisation of the marriage.

An Antenuptial Contract (ANC) is a critical legal agreement entered into before marriage that defines how assets and liabilities will be managed during the marriage and in the event of death or divorce. It allows couples to choose a matrimonial property regime other than the default "In Community of Property".

While an ANC sets the framework for your financial relationship within the marriage, circumstances can change, and you may wonder if it's possible to alter the terms of this contract after your wedding day.

The simple answer is that amending an ANC after marriage is significantly more complex than doing so beforehand.

Amending an ANC Before Marriage

Prior to the solemnisation of your marriage, you and your partner have considerable flexibility. You are legally permitted to amend, modify, or even completely revoke an existing antenuptial contract.

To make any changes effective and binding against third parties, a new notarial deed reflecting the amendments or cancellation must be executed before the marriage takes place. This notarial deed then needs to be registered in the Deeds Registry. If an amending agreement is registered after the original ANC, it will receive its own reference number and the original ANC will be endorsed accordingly.

Amending an ANC After Marriage

Once the antenuptial contract has been formally registered in the Deeds Registry and the marriage has been concluded, the situation changes significantly. A fundamental principle in South African law is that an antenuptial contract cannot be altered or cancelled simply by agreement between the spouses (inter partes) after the marriage has taken place.

Any attempt by the couple to informally change the terms of their registered ANC after marriage – for instance, by merely signing an addendum or separate agreement – is generally not legally binding or enforceable.

Amending an ANC After Marriage Through the High Court

In limited and specific circumstances, it is possible to amend or rectify an antenuptial contract after marriage, but this requires an application to the High Court.

The Court may grant an order to amend or rectify the contract if both parties can provide valid and compelling reasons, particularly where the intention is to ensure the written contract accurately reflects the true agreement or intentions the parties had before the marriage was concluded.

This High Court application process is often costly and time-consuming. Furthermore, the Court will always safeguard the rights of existing creditors and other third parties, ensuring they are not prejudiced by the proposed changes.

Rectification of Errors in an ANC

It is important to distinguish between amending the terms of an ANC and rectifying a genuine error. If an antenuptial contract contains a factual error – such as a misspelling of a name, an incorrect identity number, a mistake in describing a donated property, or an incorrect policy number – these types of errors can often be rectified without a full High Court application.

An amendment to rectify such errors can typically be done by means of an application to the Registrar of Deeds in terms of Section 4(1)(b) of the Deeds Registries Act.

Examples of errors that can potentially be rectified in this manner include:

  • An error in the name of a party.
  • An error in the date of birth or identity number of a party.
  • An error in the property description in a donation clause.
  • An error in the number of a life insurance policy to be ceded.
  • Crucially, this rectification process can only be used to correct factual mistakes and cannot be used to change, delete, or add fundamental conditions or clauses to the contract that were not originally agreed upon.

Why Consult VDM Attorneys?

Amending an antenuptial contract, especially after marriage, is a complex legal process with significant implications for your financial future. Navigating the requirements of the Deeds Registry, the High Court, and ensuring compliance with relevant legislation demands expert knowledge.

Attempting to amend an ANC incorrectly can lead to future disputes, financial complications, and the proposed changes being declared legally invalid.

At VDM Attorneys, our experienced family law team understands the intricacies involved in antenuptial contracts and their amendments. We can provide you with clear, professional advice tailored to your specific situation, guiding you through the correct legal channels whether you are seeking to amend your ANC before or after marriage or rectify an error.

Contact VDM Attorneys today to discuss your antenuptial contract and ensure your financial future is protected.