Marriage is not only a union of hearts but also a legal partnership that affects how assets, debts, and financial responsibilities are handled. While most couples decide on their marital regime before getting married, life circumstances can change—and so can your legal arrangements. That’s where Post Nuptial Contracts come in.

In South Africa, although the law doesn’t formally recognise a “Post Nuptial Contract” in the same way it does Ante Nuptial Contracts (ANCs), couples can apply to the High Court to change their marital regime after marriage. This process is governed by Section 21(1) of the Matrimonial Property Act 88 of 1984.

What Is a Post Nuptial Contract?

A Post Nuptial Contract refers to a legal process in which a married couple seeks to change their existing matrimonial property regime—for example, moving from “in community of property” to “out of community of property with or without accrual.”

This change is made after marriage, through a High Court application and is not automatic or guaranteed. It requires transparency, legal compliance, and, most importantly, the court’s approval.

Why Would a Couple Want to Change Their Marital Regime?

Life and finances evolve. Many couples find that the regime they originally chose no longer suits their circumstances.

Common Reasons for Changing a Marital Regime:

• One or both spouses start a business and want to protect personal or joint assets.
• To shield one spouse from the other’s financial risks or debt.
• To plan more effectively for estate purposes or tax benefits.
• Desire for greater financial independence within the marriage.
• Planning for the financial wellbeing of children from previous marriages.

The Legal Process of Changing Your Marriage Regime

Changing your marriage regime is not as simple as signing a new contract. It requires a formal application to the High Court.

Key Requirements for a Successful Application:

1. Joint Consent: Both spouses must agree to the change and apply together.
2. Full Financial Disclosure: The couple must declare all their assets, liabilities, and financial interests.
3. Drafting of a New ANC: A notary public must draft the new marriage contract.
4. Notice to Creditors: Creditors must be notified via Government Gazette and local newspapers to allow them to object.
5. High Court Application: An attorney prepares and submits the application to the High Court.
6. Court Approval: The judge must be satisfied that:
   • There is good cause for the change.
   • The change will not prejudice creditors.
   • There is transparency between the spouses.

Estimated Timeline:

• Approximately 3 to 6 months, depending on the court’s availability and whether any objections arise.

What Are the Costs Involved?

Changing your marital regime is a legal and administrative process, and fees will vary depending on your attorney and complexity. Costs typically include:

• Legal fees for the High Court application.
• Drafting and notarisation of the new contract.
• Advertising and publication costs.
• Court filing fees.

Risks and Considerations

• If creditors object, the court may reject the application.
• All debts and liabilities up to the date of the new contract remain shared (if previously in community of property).
• The process requires full transparency and honesty—any attempt to defraud creditors or conceal assets can lead to legal consequences.

Alternatives to Changing the Marital Regime

If you’re not ready to go through the full High Court process, there are other ways to manage financial affairs, such as:

• Drafting domestic agreements for day-to-day financial arrangements (though not always enforceable like marital regimes).
• Using trusts to manage certain assets outside of the marital estate.
• Entering business or loan agreements between spouses with professional legal assistance.

Conclusion

While South African law doesn’t formally provide for “Post Nuptial Contracts” as a standalone concept, it does allow spouses to change their marital regime—provided they follow a clear, court-supervised process. This flexibility helps couples protect their assets, adapt to life changes, and secure their financial futures.

If you’re considering this change, consult a qualified family law attorney and notary who can guide you through the legal steps, ensure compliance, and protect your interests.

Considering a change to your marital regime?
Get professional advice and legal support today. Our team can assist with drafting, disclosure, court application, and everything in between—ensuring the transition is smooth, transparent, and compliant with South African law.