The questions below are the ones that come up most often when South African couples enquire about postnuptial contracts and changes of matrimonial property regime. The answers are general information, not legal advice. The position in any particular matter depends on the facts and on the law as it applies to those facts. Our office assesses each enquiry individually.
1. Can we sign an antenuptial contract after marriage?
No. An antenuptial contract, by definition, is signed before the marriage. Once you are married, the route to change your matrimonial property regime is a section 21 application to the High Court for leave to enter into a notarial postnuptial contract. Section 21 of the Matrimonial Property Act 88 of 1984 is the statutory basis. The court must be satisfied that there are sound reasons for the change, that sufficient notice has been given to creditors, and that no other person will be prejudiced.
2. What is a postnuptial contract?
A postnuptial contract is a notarial contract that changes the matrimonial property regime of an existing marriage. It is signed before a Notary Public after the High Court has granted leave under section 21 of the Matrimonial Property Act, and it is registered at the Deeds Office. The new regime takes effect from the date of registration.
3. Can we change from in community of property to out of community of property?
This is by far the most common reason a section 21 application is brought. Whether the court will grant the application depends on whether the section 21 requirements are met on the facts of the matter. Our office assesses each enquiry on its own facts.
4. Can we change to add or exclude the accrual system?
Yes. A section 21 application can be brought to introduce the accrual system or to exclude it, as the spouses prefer. The choice between accrual and no accrual is part of the discussion at the consultation stage.
5. Do we need a High Court application?
Yes. The High Court is the competent court for the application to change a matrimonial property regime under section 21. The application is brought jointly by both spouses.
6. What is section 21 of the Matrimonial Property Act?
Section 21 of the Matrimonial Property Act 88 of 1984 is the statutory provision under which spouses may apply to the High Court for leave to change the matrimonial property system applying to their marriage. The court may grant the application if it is satisfied that there are sound reasons for the change, that sufficient notice has been given to all creditors of the spouses, and that no other person will be prejudiced.
7. Will our creditors be notified?
Yes. The Practice Directive on changes of matrimonial regime requires publication of a notice in the Government Gazette and registered-post notice to each creditor at least three weeks before the hearing. The covering letter to each creditor sets out the date, time and court of the hearing, the full names and identity numbers of the spouses, the residential addresses and places of employment in the preceding 12 months, and the effect of the proposed order. The creditor is informed of the right to appear at the hearing to oppose.
8. Can a creditor object?
Yes. A creditor whose interests will be prejudicially affected by the change of matrimonial regime may appear at the hearing to oppose the application. The notice machinery is structured to give creditors a fair opportunity to do so. Where opposition is anticipated, our office will say so at the assessment stage.
9. What happens if we have debts?
The existence of debts does not by itself prevent a section 21 application. What matters is whether the change in regime would prejudice any creditor, and whether the creditor-notice machinery has been followed. The mandatory creditor-protection clause expressly preserves the rights of every creditor existing at the date of registration of the new contract.
If either spouse is sequestrated, under debt review, or facing business rescue, the position is different. In those circumstances our office is unlikely to be able to proceed with a section 21 application.
10. What if one spouse owns a business?
Business interests are commonly the practical reason for a change of regime. Exposure to professional or business liability — and the fact that the sequestration of one spouse in a marriage in community of property sequestrates the joint estate as a whole — are sound reasons frequently relied on. The application papers set out the position with the level of detail the court will expect.
11. What if we own immovable property?
Owning immovable property does not prevent a section 21 application. The proposed notarial contract may make provision for how each property is dealt with under the new regime — retained by one spouse, retained jointly, or otherwise. Where a bondholder is involved, our office considers whether the bondholder’s position requires attention. The Registrar of Deeds report identifies any registrable issue ahead of the application.
12. Does the court always grant the application?
No. The court is required to be satisfied of the section 21 requirements. Where the reasons for the change are weak, where the creditor notice has not been properly given, or where the application appears to be designed to defeat creditors, the court will refuse. Our office gives a candid view at the assessment stage about whether the application is likely to succeed.
13. How long does the process take?
Typically three to five months from instruction to registration of the new notarial contract, subject to:
- the court roll in the relevant Division;
- the time required to obtain the Registrar of Deeds report;
- the creditor-notice period (registered post + at least three weeks before hearing);
- the Government Gazette publication cycle; and
- the Deeds Office turnaround for registration.
14. What documents do we need?
A working list is on Documents Required. The exact list for your matter is identified at the consultation stage after our office has assessed the application.
15. Do both spouses have to agree?
Yes. The application is joint. Both spouses are applicants. Both spouses depose to affidavits — the first applicant to the founding affidavit, the second to a confirmatory affidavit. An application brought without the full consent of both spouses will not proceed.
16. Can one spouse apply alone?
No. The application is brought jointly by both spouses. Where one spouse does not consent, a section 21 application is not the route. Different relief — generally within divorce proceedings — is required.
17. What happens after the court order?
The court order grants leave to enter into a notarial postnuptial contract and specifies the period within which the contract must be registered (typically three months). The spouses sign the notarial postnuptial contract before the Notary Public. The signed contract is lodged for registration at the Deeds Office. On registration, the new matrimonial property regime takes effect.
18. Does the contract have to be notarised?
Yes. A postnuptial contract is, by definition, a notarial contract. It must be prepared, signed and attested by a Notary Public. Our principal is a practising Notary Public, so the notarial execution is conducted at our office.
19. Does the contract have to be registered?
Yes. A notarial postnuptial contract is registered at the Deeds Office. Registration is what gives the new regime legal effect against third parties. Until registration, the previous regime continues to apply. This is one of the reasons the court order contains a lapsing clause — the contract must be registered within the period specified, failing which the order lapses.
20. Can we add accrual to an existing out-of-community marriage?
Yes — by way of a section 21 application. The same procedure applies. The proposed notarial contract will reflect the introduction of the accrual system in terms of Chapter 1 of the Matrimonial Property Act.
21. Can we exclude accrual from an existing out-of-community marriage with accrual?
Yes — by way of a section 21 application. Same procedure.
22. What if we were married outside South Africa?
If your marriage was concluded outside South Africa, the position requires separate consideration. Which legal system governs the patrimonial consequences of the marriage depends on the parties’ domicile at the date of marriage and on other factors. Our office will consider this at the assessment stage. Foreign marriages are not handled through the standard section 21 path without preliminary assessment.
23. Can a postnuptial contract protect assets from creditors?
A postnuptial contract changes the matrimonial property regime prospectively. It does not affect the rights of creditors who exist at the date of registration of the contract: those rights are expressly preserved by the mandatory creditor-protection clause. The contract is not a vehicle for defeating creditors. Where the court considers that the application is designed to defeat creditors, the application will be refused.
What a postnuptial contract can do is regulate the regime going forward, so that future debts incurred by one spouse do not, by virtue of the regime, attach to the other spouse’s estate. This is part of the legitimate motivation for many applications.
24. Is a postnuptial contract the same as a divorce?
No. A section 21 application changes the matrimonial property regime within an existing marriage. A divorce ends the marriage. They are entirely different proceedings. If a divorce is pending or contemplated, the patrimonial position is dealt with within the divorce proceedings, not by way of a section 21 application.
25. Can we use a DIY template?
No. A postnuptial contract is a notarial contract entered into after the High Court has granted leave under section 21. It is not something the parties can prepare on their own. Even if they did, the document would not be registrable at the Deeds Office without the underlying section 21 order, and the application papers themselves require professional drafting consistent with the Practice Directive.
26. We had a customary marriage and then a civil marriage. Does that change anything?
Yes. The Constitutional Court has held in VVC v JRM and Others (CCT202/24) [2026] ZACC 2 that a customary marriage followed by a civil marriage between the same parties is a single, continuous marriage. The civil ceremony is declaratory, not constitutive. The matrimonial property regime that took effect at the customary marriage carries over. If you wish to change the regime, the only competent route is a section 21 application. If you signed an antenuptial contract between the customary rites and the civil ceremony, that ANC is invalid on the authority of the Constitutional Court. Our office will assess each customary-marriage matter on its own facts.
27. How do we start?
Complete the online application. Our office reviews each enquiry and responds with an assessment within three to seven working days.
28. Is there a public-Deeds-Office record of the postnuptial contract?
Yes. Registered notarial postnuptial contracts are reflected in the Deeds Office records and on the title deeds of immovable property where the marital-status endorsement is updated. This is part of what gives the new regime legal effect against third parties.
29. Can we change the contract again later if our circumstances change?
In principle, yes. A further section 21 application would be required, in the same form. The court has discretion in each application. There is no statutory limit on the number of times a couple may change their regime, but the court will consider the circumstances of each application carefully, including the reasons for any prior change.
30. Where do we have to bring the application?
The application is brought in the High Court that has jurisdiction over the spouses. For couples domiciled in Pretoria and the broader Gauteng Division, Pretoria area, the Gauteng Division, Pretoria, is the competent court. The application is brought ex parte with the spouses as joint applicants.
If your question is not answered above, complete the online application so that our office can assess your matter, or contact us using the details on Contact.
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