As the names suggest, a prenuptial agreement happens before marriage, and a postnuptial agreement is obtained afterwards.
Usually, parties thought that they were going to get married out of community of property, automatically, and didn’t realise that the default position in South Africa was that if parties failed to register a marriage contract, before they get married, they are automatically married in community of property.
Once they realise their mistake, parties can apply to court to change the matrimonial property regime, for that or any other valid reason.
The parties must jointly apply to the high court for permission to make this change. The Act requires that notice of the parties’ intention to change their matrimonial property regime must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the Application will be heard and must be given by certified post to all the known creditors of the spouses. Moreover, the draft Notarial contract which the parties propose to register must be annexed to their Application.
Unfortunately, because of the need to apply to the High Court and to give notice, the application is expensive.
Click here to find out more about pricing.
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