In South Africa, an antenuptial contract (‘ANC’) is an important legal instrument that regulates how spouses’ assets and liabilities will be managed during the course of their marriage and divided in the event of divorce or either party’s death. When circumstances change, however, some spouses may wish to amend the terms of their antenuptial contract before or after marriage. While both scenarios are permissible, the legal requirements differ.
Amending an ANC pre-marriage
Under South African law, an ANC becomes effective upon the date on which a marriage is solemnised. Accordingly, a couple may amend, modify, or revoke their antenuptial contract prior to the solemnisation of the marriage. In this case, an amending agreement must be signed by both parties and notarially executed prior to the conclusion of the marriage. Crucially, it must be duly registered in the Deeds Office to have legal effect and be binding against third parties.
Amending an ANC post-marriage
While South African law grants couples the flexibility to easily amend their antenuptial contracts pre-marriage, amending an ANC after it has been formally registered in the Deeds Office is a little more complicated.
As financial circumstances evolve, a couple may wish to alter the terms of the ANC to either include or exclude the accrual system or modify the list of excluded assets. Perhaps one spouse has recently won the Powerball jackpot or wishes to ring-fence their business interests. In these instances, both spouses must agree to the proposed change(s), and apply to the High Court for authorisation to notarially amend their antenuptial contract.
As part of this application, the couple will have to provide a good reason for the amendment, set out in the Notice of Motion, which cannot be contrary to prevailing public morals. If satisfied, the court will grant the parties leave to conclude a notarially executed amendment to the ANC and direct the relevant Deeds Office to register such amendments.
Importantly, an antenuptial contract that is simply altered by agreement between the parties is not legally binding in South Africa.
How can our family law attorneys help?
Whatever the reason, amending your ANC can have significant legal and proprietary consequences, which is why expert legal guidance is essential. If your antenuptial contract no longer reflects your financial circumstances or lived reality, STBB’s Cape Town-based family lawyers can help you amend your ANC to prevent future disputes, ensure financial clarity, and give you total peace of mind.
For expert legal assistance, contact our trusted attorneys at familylaw@stbb.co.za today.
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