Postnuptial Contracts South Africa

Documents Required

A section 21 application is a document-driven matter. The court must be satisfied of the requirements set out in section 21 of the Matrimonial Property Act 88 of 1984 and of compliance with the Practice Directive on changes of matrimonial regime. To do that, the application must be supported by documents and schedules covering the parties, the marriage, the current regime, the assets and liabilities, and the creditors.

This page sets out the typical document checklist. The exact list for your matter depends on the facts. Our office identifies the specific documents we need at the consultation stage, after the initial assessment.

A. PERSONAL DOCUMENTS

For each spouse:

  • Certified copy of identity document. The South African green ID book or smart ID card. A foreign passport where the spouse is not a South African citizen — this is a matter we will need to assess separately.
  • Proof of current residential address. A municipal account, bank statement, or utility bill not older than three months. The address that appears on the court papers must match the address you have lived at, with detail of any other addresses in the preceding 12 months.
  • Proof of employment. Most recent payslip or letter from employer. The Practice Directive requires the places of employment in the preceding 12 months to be set out, so older employers should be identified if there has been a change in the past year.
  • Contact details. Cell phone and email — these are used for the court papers’ service block where required, and for correspondence with our office.

B. MARRIAGE DOCUMENTS

  • Marriage certificate. The abridged certificate is acceptable for some purposes, but the full unabridged marriage certificate is typically preferred. If you do not have one, Home Affairs can issue a replacement.
  • Original antenuptial contract, if one was signed but not registered. This is annexed as evidence of pre-marital intention. It is not registered or revived: a new notarial postnuptial contract is drafted in every matter.
  • Customary marriage documentation, if applicable. Lobola letter, family declarations, or any documentary record confirming the date and place of the customary marriage. Home Affairs registration of the customary marriage if it was registered.
  • Civil union documentation, if applicable.

If the marriage was concluded outside South Africa, please tell us at the application stage. Foreign marriages need a separate assessment.

C. EVIDENCE OF CURRENT MATRIMONIAL PROPERTY REGIME

Our office will run a Deeds Office search to confirm the current matrimonial-status endorsement on any title deed. Where applicable, please also provide:

  • the existing registered antenuptial contract (if any);
  • correspondence from any prior attorney or notary about the regime;
  • if relevant, the original notary’s confirmation of why an antenuptial contract was not registered.

D. IMMOVABLE PROPERTY

For each property either spouse owns:

  • Title deed. A copy is sufficient.
  • Registered owner and ID number. As reflected on the title deed.
  • Marital-status endorsement. As reflected on the title deed.
  • Bondholder details, bond number, original bond amount, current outstanding balance.
  • Bond statement. Most recent statement showing the outstanding balance.
  • Whether the bond is in arrears.
  • Whether bondholder consent to the change of regime is to be sought. Our office will advise.
  • Intended allocation under the new regime. Whether the property will be retained by one spouse, by both jointly, or otherwise dealt with.

If you own property abroad, please tell us — foreign immovable property does not by itself prevent a section 21 application but may require additional consideration.

E. MOVABLE PROPERTY AND OTHER ASSETS

A summary schedule is required, covering:

  • vehicles (with registration numbers and approximate values);
  • bank and investment accounts (institution, account-type description, approximate balance);
  • retirement annuities, pension funds, provident funds;
  • shares, unit trusts and other investments;
  • business interests (companies, partnerships, sole proprietorships);
  • trust interests (whether as founder, trustee, or beneficiary);
  • inheritances anticipated or received;
  • foreign assets;
  • any other material movable assets.

A full asset-and-liability statement may not be required for every matter, but a fair summary of each spouse’s separate position must be set out in the founding affidavit, particularly where the creditor or estate-planning case turns on it.

F. LIABILITIES AND CREDITORS

The creditor schedule is one of the most important parts of the application. The court is required to be satisfied that sufficient notice has been given and that no other person will be prejudiced. The Practice Directive requires the name, address, amount owing, and cause of action of every contingent and other creditor.

For each creditor, please provide:

  • Name as it appears on statements;
  • Postal address suitable for registered post (a PO Box is sufficient; ensure it is current);
  • Cause of action (for example: “Mortgage bond B12345/2020 over [property]”; “Credit facility extended on [date]”; “Bank overdraft”);
  • Amount owing as at a recent date, supported by a statement;
  • Whether the debt is joint or separate (in the joint estate, or in one spouse’s separate estate);
  • Whether the creditor is contingent (for example a suretyship, a tax debt under enquiry, or a pending claim).

Common categories of creditor we see:

  • home loan bondholders (banks);
  • vehicle finance providers;
  • credit card and overdraft providers;
  • personal loan providers;
  • retail credit accounts (clothing accounts, store cards);
  • the South African Revenue Service for assessed but unpaid tax;
  • municipalities for rates and services in arrears;
  • suretyship obligations to banks or business creditors;
  • any pending judgment creditor.

If there are no creditors, please confirm that explicitly. The application will require a positive averment that all creditors of whom the spouses are aware have been disclosed.

G. EVIDENCE SUPPORTING THE REASONS FOR THE CHANGE

The reasons that support the application are deposed to in the founding affidavit. The evidence supporting them is matter-specific but commonly includes:

  • documents evidencing the start of a business (CIPC documents, business registration);
  • documents evidencing professional liability exposure (admission certificates for professions where personal liability attaches);
  • correspondence with auditors, financial planners, or succession planners;
  • documents evidencing estate-planning needs (existing wills, trust deeds);
  • the original antenuptial contract signed but not registered;
  • correspondence with the original notary showing that the contract was intended for registration.

Our office will identify the specific evidence we need after reviewing your application.

H. DOCUMENTS THAT THE FIRM OBTAINS ON YOUR BEHALF

You do not need to obtain everything yourself. Our office obtains, on your behalf:

  • the Registrar of Deeds report;
  • the Government Gazette publication;
  • registered-post slips for creditor notice;
  • updated Deeds Office search results;
  • the Home Affairs marital status confirmation, where required;
  • counsel’s brief (where the matter is being argued in person).

I. DOCUMENTS SIGNED LATER IN THE PROCESS

These are signed at the appropriate stage; they are not part of the initial collection:

  • the founding affidavit (signed by the first applicant before a Commissioner of Oaths after final drafting);
  • the confirmatory affidavit (signed by the second applicant in the same way);
  • the notarial postnuptial contract (signed by both spouses before the Notary Public after the court order is granted);
  • the supplementary affidavit (signed by the firm after the notice machinery is complete);
  • any consent letter from a bondholder, if applicable;
  • a power of attorney for lodgement at the Deeds Office.

J. WHAT WE ASK FOR AT THE ONLINE APPLICATION STAGE

The online application asks for the information our office needs to assess the matter. You do not need to upload every document listed above at the application stage. The application focuses on:

  • both spouses’ personal details;
  • the marriage details;
  • a high-level summary of assets and liabilities;
  • the creditor list;
  • the proposed new regime; and
  • the reasons for the change.

Once the assessment is complete and you instruct our office to proceed, we issue a tailored document-collection checklist for your matter.

Apply Online →

Our office reviews each application and identifies precisely what documents will be required for your matter. The online application is the starting point.

[ Start the Online Application ] → /apply-online/