Postnuptial Contracts South Africa

Section 21 High Court Application

A section 21 application is the High Court application by which spouses, married in South Africa, ask the court for leave to change the matrimonial property system that applies to their marriage. The application is brought jointly under section 21 of the Matrimonial Property Act 88 of 1984. If granted, the order authorises the spouses to enter into a notarial postnuptial contract regulating their future matrimonial property system, on such conditions as the court may think fit.

This page sets out the statutory basis of the application, the requirements the court must be satisfied of, the documents and notices that must accompany the application, and the typical content of the court order.

THE STATUTORY BASIS

Section 21(1) of the Matrimonial Property Act 88 of 1984 provides:

A husband and wife, whether married before or after the commencement of this Act, may jointly apply to a court for leave to change the matrimonial property system, including the marital power, which applies to their marriage, and the court may, if satisfied that —
(a) there are sound reasons for the proposed change;
(b) sufficient notice of the proposed change has been given to all the creditors of the spouses; and
(c) no other person will be prejudiced by the proposed change,
order that such matrimonial property system shall no longer apply to their marriage and authorise them to enter into a notarial contract by which their future matrimonial property system is regulated on such conditions as the court may think fit.

Subsection (2) sets out the operation of Chapter 1 (which deals with the accrual system) where the new regime introduces accrual.

The section is the operative legislative mechanism. Every section 21 application is built around it.

REQUIREMENT (a) — SOUND REASONS

The court must be satisfied that there are sound reasons for the proposed change. The founding affidavit is therefore structured around the specific reasons that apply to the matter, deposed to under oath by the deponent and confirmed by the second applicant.

Reasons frequently relied on, where supported by the facts, include:

  • The friction caused by section 15 of the Matrimonial Property Act, which requires the consent of the other spouse — sometimes in writing, sometimes attested by two competent witnesses — for an extensive list of transactions: alienating immovable property in the joint estate; alienating shares, debentures and similar investments; binding oneself as surety; entering into credit agreements under the National Credit Act; alienating or burdening assets used in a trade, profession or business.
  • Exposure to professional or business liability, with the effect that the sequestration of one spouse in a marriage in community of property sequestrates the joint estate as a whole (section 17(4) of the Insolvency Act 24 of 1936).
  • Estate-planning constraints, including the inability of either spouse to make individual testamentary provision for assets that legally belong to both, and the practical freezing of the joint estate on the death of one spouse pending finalisation of the deceased estate.
  • Investment and tax-planning considerations.
  • The desire for financial independence in households where both spouses are economically active.
  • The fact that an antenuptial contract was prepared and signed before marriage but was not registered within the three-month period prescribed by section 87 of the Deeds Registries Act 47 of 1937, with the consequence that the marriage is in community of property despite the parties’ original intention.

The reasons are deposed to with sufficient particularity. Bare conclusory averments are not enough. Where the reasons relate to professional liability, the deponent’s profession and the nature of the exposure are set out. Where they relate to estate planning, the position is explained in concrete terms. The court is in our experience receptive to honest, specific reasons; it is not receptive to vague generalities.

REQUIREMENT (b) — SUFFICIENT NOTICE TO CREDITORS

The Pretoria Practice Directive on changes of matrimonial regime sets out the notice machinery that must accompany the application. In summary:

  1. A notice substantially in the form of the prescribed annexure is published in the Government Gazette.
  2. A Registrar of Deeds report is obtained before the Gazette notice is placed.
  3. At least three weeks before the hearing, the notice is forwarded to each creditor by registered post, with a covering letter that states:
  • the date, time and court of the hearing;
  • the full names of the spouses, their identity numbers and their residential addresses and places of employment in the preceding 12 months;
  • the effect of the proposed order; and
  • that a creditor whose interests will be prejudicially affected by the change of marital regime may appear at the hearing to oppose.
  1. The name, address, amount owing to, and cause of action of every contingent and other creditor is set out in the application.
  2. Compliance with the notice requirements is proved at the hearing by a supplementary affidavit attaching:
  • the Government Gazette publication;
  • the registered-post slips and copies of the creditor letters; and
  • the Registrar of Deeds report.

The notice machinery is not a formality. It is the means by which the second statutory requirement is satisfied. Where notice has not been given as required, the application will be refused.

REQUIREMENT (c) — NO PREJUDICE

The court must be satisfied that no other person will be prejudiced by the proposed change. The application papers address this in two principal ways.

First, the schedules of assets and liabilities, and the schedule of creditors, are set out comprehensively. Every contingent or other creditor of whom the spouses are aware is disclosed by name, address, amount and cause of action. The spouses confirm under oath that they have disclosed all current and contingent creditors of whom they are aware.

Second, the creditor-protection clause is included identically in three documents:

  • the prayers in the Notice of Motion;
  • the draft order filed with the application; and
  • the notarial postnuptial contract that the order authorises.

The standard wording (as the firm pleads it) is:

This Order shall not prejudice or restrict the rights of any creditor of any of the Applicants as at the date of registration of the Postnuptial Contract.

In the notarial contract itself, the same provision is phrased as:

The registration of this Postnuptial Contract shall not prejudice or restrict the rights of any creditor of any of the Spouses as at the date of registration of this Postnuptial Contract.

The substance is identical: no creditor existing at the date of registration is prejudiced by the change of regime.

THE DOCUMENTS THAT MAKE UP A SECTION 21 APPLICATION

Every section 21 application bundle in our office contains:

  1. Notice of Motion — the initiating document, setting out the prayers (the orders sought).
  2. Founding Affidavit — deposed to by the first applicant, setting out the parties, the marriage, the current regime, the sound reasons, compliance with the Practice Directive, and the prayers.
  3. Confirmatory Affidavit — deposed to by the second applicant, confirming the contents of the founding affidavit.
  4. Draft Notarial Postnuptial Contract — annexed to the founding affidavit, in the form the parties will execute and register if the order is granted.
  5. Marriage certificate — annexed.
  6. Existing antenuptial contract — annexed, only if one was prepared but not registered, as evidence of pre-marital intention.
  7. Customary marriage documentation — annexed, where the marriage was preceded by a customary marriage.
  8. Schedule of immovable property — title deeds, bond particulars.
  9. Creditor schedule — name, address, amount, cause.
  10. Registrar of Deeds report — obtained before the Gazette notice.
  11. Government Gazette notice — the published notice.
  12. Creditor letters — registered-post letters to every creditor, with proof of posting.
  13. Supplementary Affidavit — proving compliance with the notice machinery.
  14. Draft Order — setting out the relief in the form the court is asked to grant.
  15. Practice Note — setting out the nature of the application, the parties, counsel, estimated duration, and indexing.

The skeleton of every bundle is the same. The fact-specific content of each bundle differs from matter to matter.

THE TYPICAL FORM OF THE COURT ORDER

A standard order granting a section 21 application is typically in this form (this is firm-precedent template wording, not the order in any particular matter):

1. The Applicants are granted leave to execute and register a postnuptial contract [with the exclusion of / subject to] the accrual system in terms of Chapter 1 of the Matrimonial Property Act 88 of 1984, in terms of section 21 of the Matrimonial Property Act 88 of 1984, a copy of which is annexed hereto and marked as annexure “B”.
2. The Registrar of Deeds is authorised to register the aforementioned postnuptial contract.
3. Subject to the requirements of the Registrar of Deeds, the postnuptial contract is to be duly registered within a period of three months from the date of this order, failing which this order shall lapse.
4. From the date of registration of the said postnuptial contract, the marriage of the Applicants shall be governed by the provisions of such postnuptial contract.
5. This Order shall not prejudice or restrict the rights of any creditor of any of the Applicants as at the date of registration of the Postnuptial Contract.

Three features are worth emphasising:

  • Prospective effect — clause 4 confirms that the regime begins from the date of registration. Not the date of the order, and not the date of marriage.
  • Lapsing clause — clause 3 sets a period for registration. If the contract is not registered within that period, the order lapses.
  • Creditor protection — clause 5 is the mandatory creditor-protection clause.

Each of these is firm policy; each matters in practice.

CASES THE COURT CONSIDERS RELEVANT

Sections 21 applications draw on a settled body of authority. Without committing to a detailed discussion that belongs in legal submissions rather than on a website, the authorities most often referred to include:

  • Ex Parte Oosthuizen en ‘n Ander 1990 (4) SA 15 (OK) — postnuptial orders operate prospectively only;
  • Lourens et Uxor 1986 (2) SA 291 (C) — sound reasons for change;
  • Honey v Honey 1992 (3) SA 609 (W) — sound reasons and inter partes effect;
  • Odendaal v Odendaal 2002 (1) SA 763 (W) — procedural requirements;
  • VVC v JRM and Others (CCT202/24) [2026] ZACC 2; 2026 (3) SA 1 (CC) — Continuous Marriage Doctrine; section 21 is the only competent route to change the regime where a customary marriage was followed by a civil marriage.

The application papers cite the relevant authorities where the facts call for them. Citations are kept to those that bear on the issues in the matter at hand.

WHEN A SECTION 21 APPLICATION WILL NOT WORK

It is part of our office’s role to tell you, at the assessment stage, when a section 21 application is not the right route. Common reasons include:

  • one or both spouses are sequestrated, under debt review, or facing business rescue;
  • the application appears to be designed to defeat creditors;
  • a divorce is pending or contemplated;
  • the matter requires the transfer of specific assets between the spouses rather than a change of regime;
  • one spouse does not fully consent;
  • the matter involves a customary marriage and an “ANC” was signed between the customary rites and the civil ceremony (in which case the ANC is invalid on the authority of VVC v JRM and Others, and the matter needs an attorney-led triage before any application is drafted);
  • the marriage was concluded outside South Africa and the question of which legal system governs the patrimonial position requires separate consideration.

In each of those cases we will tell you so candidly.

If you and your spouse would like our office to assess whether a section 21 application is appropriate in your matter, complete the online application. We will review your information and advise on the next step.

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Completing the form does not create an attorney-client relationship and does not guarantee the success of any application.