A postnuptial contract is a notarial contract that changes the matrimonial property regime governing a marriage, entered into after the marriage has already been concluded.
It is not the same as an antenuptial contract. An antenuptial contract is signed before the marriage and registered at the Deeds Office within three months of execution. A postnuptial contract is signed during the marriage, with the leave of the High Court granted under section 21 of the Matrimonial Property Act 88 of 1984, and registered at the Deeds Office in the same way.
A postnuptial contract is not something that spouses can simply prepare and sign privately. The High Court must first grant leave. The court will only do so if it is satisfied that there are sound reasons for the proposed change, that sufficient notice has been given to all creditors of the spouses, and that no other person will be prejudiced.
The new matrimonial property regime takes effect from the date the postnuptial contract is registered at the Deeds Office. It does not operate retrospectively. Debts and obligations incurred before that date remain governed by the regime under which they were incurred.
WHY A POSTNUPTIAL CONTRACT EXISTS IN SOUTH AFRICAN LAW
Before 1984, the position was inflexible: spouses who wished to change their matrimonial property regime had limited options, and the courts were cautious. Section 21 of the Matrimonial Property Act 88 of 1984 introduced a clear statutory route. Section 21(1) provides that:
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.
The application is joint: both spouses participate. The court’s role is not to rubber-stamp the request — it must be satisfied that the statutory requirements have been met.
HOW A POSTNUPTIAL CONTRACT DIFFERS FROM AN ANTENUPTIAL CONTRACT
| Feature | Antenuptial contract | Postnuptial contract |
|---|---|---|
| Timing | Signed before marriage | Signed during marriage |
| Court involvement | None | High Court application required (section 21 MPA) |
| Registration deadline | Within three months of execution (section 87 of the Deeds Registries Act 47 of 1937) | Within the period specified in the court order, often three months |
| Notice to creditors | Not required | Required: Government Gazette and registered post to every creditor |
| Effect | From the date of marriage | From the date of registration of the notarial contract — prospective only |
| Cost | Modest (a single notarial fee plus Deeds Office fees) | More substantial (court application, advocate, Gazette, registered post, Deeds Office) |
A common misconception is that a couple who “should have signed an antenuptial contract before marriage” can quietly sign one after the wedding and have it registered. That is not how the system works. Once you are married, any change must go through section 21. We see this misconception most often in couples whose original notary prepared an antenuptial contract before the wedding, but for some reason never lodged it for registration within the three-month period.
WHAT A POSTNUPTIAL CONTRACT TYPICALLY CHANGES
The most common change is from being married in community of property to being married out of community of property. The new regime can be:
- Out of community of property without the accrual system — each spouse retains a separate estate, and no sharing of growth applies at the end of the marriage; or
- Out of community of property with the accrual system — each spouse retains a separate estate during the marriage, but the growth of their estates is shared between them at the dissolution of the marriage in accordance with Chapter 1 of the Matrimonial Property Act.
It is also possible to vary an existing regime in other ways — for example, to introduce or exclude the accrual system, or to deal with how immovable property held in the joint estate will be allocated under the new regime. Each variation must be addressed in the proposed notarial contract that accompanies the section 21 application.
See our pages on each regime →
THE ROLE OF THE NOTARY
A postnuptial contract must be notarially executed. This means it is prepared, signed and attested by a Notary Public — an attorney admitted to the additional speciality of notarial practice. Our principal, Louwrens Koen, is a practising Notary Public.
The Notary Public is responsible for ensuring that the document is properly drafted, that the parties understand and confirm the terms, and that the notarial protocol is observed for the contract to be registrable at the Deeds Office.
The notarial execution happens only after the High Court has granted leave and the order specifies the period within which the contract must be lodged for registration.
Read more about our notarial services →
THE ROLE OF THE DEEDS OFFICE
A notarial postnuptial contract is registered at the Deeds Registry — for couples in the firm’s home jurisdiction, that is the Deeds Registry in Pretoria. Registration is what gives the new matrimonial property regime legal effect against third parties.
The new regime begins from the date of registration. Until that date, the previous regime continues to apply. This is one of the most important practical points to understand: the application, the court order and the signing of the notarial contract do not by themselves change the regime. Registration does.
Read more about Deeds Office registration →
A POSTNUPTIAL CONTRACT IS NOT A SHORTCUT
It is sometimes presented as a “fix” for couples who realise after the wedding that they should have had an antenuptial contract. It can in fact remedy that position, but only by following the section 21 process described on this site. A postnuptial contract:
- is not signed privately like an ordinary commercial contract;
- does not change the regime retrospectively;
- cannot be used to transfer assets between spouses in a way that prejudices creditors;
- is not appropriate where one spouse does not fully consent;
- is not appropriate where a divorce is pending or contemplated;
- is not appropriate where the application appears designed to defeat creditors.
If any of those circumstances apply, our office will say so at the assessment stage rather than draft an application that is unlikely to succeed.
WHEN A POSTNUPTIAL CONTRACT IS THE RIGHT TOOL
It is the right tool when the spouses jointly wish to change their matrimonial property regime; when there are honest, supportable reasons for the change; when creditors are protected by appropriate notice and by the standard creditor-protection clause in the order and the contract; and when the application is brought without prejudice to anyone else’s rights.
If those conditions are met, the application can produce a clean, registered change of regime that is recognised by all the parties who need to recognise it: your spouse, your creditors, the Deeds Office, the Master of the High Court (if the question ever arises in winding up an estate), and the South African Revenue Service.
NEXT STEPS
If you would like our office to assess whether the section 21 process is appropriate in your matter, please complete the online application. We will review your information and advise on the next step.