South African law clearly states that if you did not conclude an Antenuptial Contract prior to your marriage, you are automatically married 'in community of property' by default. By law, you are not allowed to execute an Antenuptial Contract after your marriage.
The same will apply if the Antenuptial Contract was, for whatever reason, not registered in the Deeds Office within three (3) months from the date of signature. Once the prescribed period has lapsed, your Antenuptial Contract will not be enforceable and you will be married in community of property.
The legal implications of being married in community of property, to name a few, is of course:
The Matrimonial Property Act, 1984 does provide that a married couple may jointly apply to the High Court to amend their existing marital regime in terms of section 21(1), by registering a Postnuptial Contract.
Similarly, if your Antenuptial Contract contract was not registered within the prescribed 3 month period, the Deeds Registries Act provides that in terms of section 88, you may apply to the court for permission for the late registration of your Antenuptial Contract.
Both these legal procedures involve an application to the High Court by both marriage partners, requesting permission to either enter into a Postnuptial Contract, or else to tend to the late registration of an unregistered Antenuptial Contract, as the case might be. Only if the Court is satisfied with the application will the Court authorise the parties to proceed with registration within a set time-frame, usually of 3 months.
If registration of the contract does not occur within this period, the parties will remain being married in community of property. If registration does occur, the registered contract will regulate the new marital regime from date of registration as excluding community of property and community of profit and loss, either with or without the application of the accrual system.
Although the costs of registration is about the same as that of an normal Antenuptial Contract, the added costs of the High Court application makes the entire process significantly more expensive. It will however, be well worth the costs if you consider all the implications of being married in community of property, as stated above.
Unfortunately, the costs would depend on the following questions:
Call us to discuss your matter free-of-charge. Once we have obtained the above information, we will be able to give you a no-obligation quote. For any business owner, being married in community of property could have serious and potentially negative consequences, especially when it comes to estate planning and protecting your assets from attachment by creditors.
Most parties often only become aware of these consequences after the conclusion of their marriage. This is precisely why we, at Grobler Malope Inc. offer an interest free, instalment payment plan to make the process more affordable, despite our already reduced all-inclusive price in comparison to all the other service providers. You may contact us at any time for a free no-obligation all-inclusive estimate or quotation.
We currently have a 100% success rate with our applications that met all of the requirements in the following High Courts: Western Cape Division in Cape Town, North West Division in Mahikeng, Gauteng North and South Divisions in Pretoria and Johannesburg.
As already stated, in order to change your matrimonial property system, a joint application must be made to the High Court by both spouses, requesting the Court to grant leave to sign and/or register the contract. The time period involved will vary from 8 weeks onward, depending how quickly the High Court can allocate a date for the application to be enrolled.
The Application will require the following information:
1) ESTABLISH CONTACT
First of all, you need to establish contact with us. This can be done by phoning 087 057 1790, or by sending an email to info@gmilaw.co.za, or by completing our contact form.
2) THE CONTRACT
We then need to establish if the application will be for for a late registration of an already signed Antenuptial Contract, or for a new Postnuptial Contract. An already signed Antenuptial Contract will have to be reviewed to ensure it's valid and complies with all the requirements. With a new Postnuptial Contract the parties will have to decide whether they want to exclude the accrual system or not. Then the proposed contract must be finalised.
3) THE APPLICATION
The application will be drafted as well as the required affidavits of the parties involved. After all the required information has been received, as well as substantiating proof and documents, the application will be issued and served on the relevant parties.
Finally, the matter will be enrolled and counsel will be briefed to attend to the matter on the court date. Once the application has been granted, the Court will issue an order that the Postnuptial Contract be notarised and registered within a set period, usually 3 months, in order to be valid.
4) REGISTRATION
Upon receipt of the court order, the contract will be submitted for registration and we will keep you advised of the progress in this regard. As soon as the registered contract is received back from the Registrar of Deeds, we will scan it and email you a copy before the original is eventually couriered to you.
For more information, please send an email to info@gmilaw.co.za or phone 087 057 1790 during office hours.
Copyright © 2023 Rohan Lamprecht. Disclaimer: The information in this article is of a general nature for educational purposes only, relevant to the publishing date. Any opinions expressed are solely those of the author and do not necessarily reflect the views or opinions of Grobler Malopi Inc. The content is not intended to constitute professional or legal advice, and you are encouraged to call and consult with our attorneys to discuss your specific situation before making any decisions. Grobler Malope Inc - 087 057 1790 - info@gmilaw.co.za