In South Africa, the matrimonial property regime is primarily governed by the law of the country. Most couples default to a marital regime known as "In Community of Property" when they get married. However, it is crucial to understand that couples can amend this by entering into a new contract known as an "Antenuptial Contract" (ANC) before or after marriage. In this article, we will guide you through the process of amending an ANC in South Africa.

Understand the Basics of an ANC

Before you start amending your ANC, it's essential to have a clear understanding of what it entails. An ANC is a legal contract that stipulates how your assets and liabilities will be managed during your marriage and in the event of divorce or death. The two primary ANC options in South Africa are:

• In Community of Property: After your marriage, a joint estate is created and the assets and liabilities of both spouses become part of the joint estate and every asset will be jointly owned by both parties (irrespective if acquire before or during the marriage).

• Out of Community of Property (with or without accrual): This means that before you get married, both you and your spouse enter into an ANC which specifically states that your marriage with be “out of community of property”. Once you have elected to get married out of community of property, you will need to make a second election, namely are you can be married with accrual or without accrual. If accrual applies, a joint estate of the spouses is created at the time that the marriage is entered into and from thereafter, what each spouse earns during the marriage belongs to the joint estate. This means that all your respective assets need to be disclosed prior to getting married and listed in your ANC.

Consult with a Legal Professional

Amending an ANC is a legal process and it's highly advisable to seek professional legal counsel. A qualified attorney can help you draft the necessary documentation and ensure that your amended ANC complies with South African law.

Draft an Amendment Agreement

To amend an ANC after marriage, both spouses must agree on the proposed changes. This may involve changing the matrimonial property regime from "In Community of Property" to "Out of Community of Property" or making amendments to the existing ANC. Your attorney will help you draft a legally sound amendment agreement that outlines the changes.

Execute the Amendment Agreement

Both spouses must sign the amendment agreement in the presence of a notary public. The notary public will authenticate the document to ensure its legal validity.

Amending ANC Before Marriage

Prospective spouses are free to amend or even to cancel the antenuptial contract before the conclusion of the marriage, as the contract only becomes effective once the marriage is solemnised.

The amended agreement (a.k.a amending agreement) or notarial deed of cancellation must be executed before the marriage is concluded and must be registered in the deeds registry, in order to be effective against third parties. An antenuptial contract number will be allocated to the amending deed. 

Amending ANC After Marriage

Once the ANC has been registered and confirmed by marriage, it cannot be altered between the parties (a.k.a. inter partes).

An application will have to made to a High Court of competent juridication by both spouses and only if valid reasons exist, grant an order for the rectification or amendment of the contract in order to reflect the true intentions of the parties. All other parties concerned must consent to the rectification. The court will always reserve the rights of creditors and third parties.

Register the Amendment with the Deeds Office

To make your amended ANC legally binding, you must register it with the South African Deeds Office. This ensures that the changes are publicly recorded and can be accessed if necessary. Your attorney will assist you in completing the necessary documentation for registration.

Notify Creditors and Financial Institutions

If you had any joint financial agreements or creditors under the previous ANC, it's crucial to notify them of the changes. This will help avoid any confusion or disputes regarding property ownership and financial obligations.

Keep Copies of the Amended ANC

After registration, make sure to keep multiple copies of the amended ANC in a safe place. Share copies with your attorney and other relevant parties, such as financial institutions, to ensure that everyone is aware of the new marital property regime.

Conclusion

Amending an Antenuptial Contract in South Africa after marriage is a legal process that requires careful consideration and adherence to the country's legal requirements. To ensure a smooth transition to your desired matrimonial property regime, consult with a qualified attorney who specializes in family law. With professional guidance, you can make the necessary amendments to protect your assets and secure your financial future.

Barter McKellar’s family law attorneys have extensive experiencing on advising on applications of this nature. If you would like to find out more, contact our offices today to schedule a consultation.