Failure to Register an Antenuptial Contract: Can One Spouse Force a Change to the Matrimonial Property Regime?

South African law on correcting an unintended matrimonial property regime, section 21 MPA applications, spouse consent, and negligence claims against attorneys. 

Written by Roy Bregman, an admitted attorney with over 51 years' experience in South African family and matrimonial property law.

A client asked: “Can a court correct a matrimonial property regime where both spouses intended to conclude an antenuptial contract, but it was not executed or registered due to attorney negligence—and can one spouse be compelled to participate in such a correction?”

Can You Force Your Spouse to Change Your Matrimonial Property Regime After Attorney Negligence?

Key Takeaways

• South African law allows spouses to correct an unintended matrimonial property regime caused by attorney or notarial negligence, but only with a joint High Court application and no prejudice to creditors.​
• Section 21(1) of the Matrimonial Property Act 88 of 1984 is the primary mechanism to change the matrimonial property system after marriage, and it expressly requires both spouses’ consent.​
• If one spouse refuses to cooperate (for example, because they benefit from being married in community of property), the court will not impose a new regime unilaterally.​
• The aggrieved spouse’s realistic remedy is usually a professional negligence claim against the attorney or notary whose failure caused the wrong matrimonial regime.​

South African Legal Framework on Matrimonial Property Systems

Legal principles: correcting an unintended matrimonial property system

Default regimes and antenuptial contracts

South African law starts from the principle that, absent a valid ANC executed and registered before marriage, spouses are married in community of property by default. Where the parties in fact intended to marry out of community (with or without accrual), but attorney or notarial negligence prevented a valid ANC from coming into effect, the law provides two broad routes to seek correction.​

First, if an ANC was validly executed before the marriage but not registered timeously due to error or oversight, the High Court can authorise condonation of late registration under the Deeds Registries Act, with retrospective effect, provided creditors are notified and not prejudiced. Second, if no valid ANC exists and the parties wish to change the system after marriage, section 21(1) of the Matrimonial Property Act 88 of 1984 permits a joint application to change the matrimonial property regime, again subject to sound reasons and protection of creditors.​

Section 21(1) Matrimonial Property Act: Postnuptial change

Statutory framework: section 21 of the Matrimonial Property Act

Section 21(1) of the Matrimonial Property Act is the central statutory authority for postnuptial changes to the matrimonial property regime. It allows a husband and wife, after their marriage, to jointly apply to the High Court for leave to change their matrimonial property system, provided there are sound reasons, proper notice to creditors, and no prejudice to creditors or third parties.​

Courts have repeatedly used section 21 to give effect to the spouses’ true intention where the wrong regime resulted from mistake or professional negligence. However, the wording “husband and wife may jointly apply” is crucial: the statute provides no basis for a unilateral application by only one spouse to change the regime against the will of the other.​

Case Law on Correcting Unintended Matrimonial Property Regimes

Case law: intention, negligence and postnuptial correction

Applications based on mistake and negligence

Several reported decisions illustrate how the courts have approached these applications. In cases such as Ex parte Oosthuizen, Ex parte Spinazze and Another and Ex parte Burger, the courts granted leave to change the matrimonial property regime where the parties intended to marry out of community but failed to execute or register the ANC correctly. The courts emphasised two key elements: the genuine common intention of both spouses, and the absence of prejudice to creditors.​

Rectification where an ANC exists

Rectification is also available where an ANC exists but does not reflect the spouses’ true intention because of a common mistake. In PV v EV (SCA), the court confirmed that an antenuptial contract, as a written agreement, can be rectified where the written terms do not reflect the parties’ actual agreement, provided sufficient evidence of the common intention is placed before the court. Rectification, however, presupposes a valid ANC; where there is none, spouses must use section 21.​

Must Both Spouses Consent to the Change?

The joint-application requirement: can one spouse be compelled?

Why the court requires a joint application

The decisive issue in the client’s question is whether a husband can compel his wife to join a court application to change the regime where she now benefits from the existing system. Both the condonation route (late registration of a validly executed ANC) and a section 21(1) application are premised on a joint approach by both spouses and on the proposed regime reflecting their shared intentions.​

Because section 21(1) expressly requires that “a husband and wife may jointly apply”, the courts have consistently treated the change of matrimonial regime as a consensual adjustment of the patrimonial consequences of marriage. If the wife refuses to cooperate because she prefers the more favourable consequences of being married in community of property, the husband cannot force her to support the application, and the court will not impose a new regime unilaterally.​

Practical consequences and the husband’s remedy

What if one spouse refuses?

Where one spouse refuses to participate, the marriage remains governed by the existing matrimonial property regime, usually in community of property if no valid ANC was executed and registered. The husband’s frustration with this outcome does not create a power to override his wife’s autonomy or to compel her participation in a joint application.​

Attorney or Notary Negligence: The Claim for Damages

In practice, the aggrieved spouse’s realistic remedy lies in a professional negligence claim against the attorney or notary whose failure to execute or register the ANC properly caused the loss. South African courts have recognised such claims, for example in Van Heerden Brummer Inc v Bath (SCA), where an attorney was sued because an invalid ANC left the client worse off on divorce; the measure of damages is typically the financial difference between the intended regime and the regime that actually applies.​

Conclusion

South African law recognises that attorney or notarial negligence can result in spouses being married under a matrimonial property regime they never intended, and it provides mechanisms to correct this by way of court-approved, postnuptial changes. However, those mechanisms are inherently consensual: both late registration of an ANC and a section 21(1) application to change the matrimonial property system require a joint application by both spouses, and the courts will not impose a new regime against the will of one spouse.​

If a wife is content to remain married in community of property because it benefits her, the husband cannot compel her to support a High Court application to alter the regime, even if the original intention was to marry out of community under an ANC. His primary remedy is instead to explore a professional negligence claim against the practitioner whose failure deprived him of the intended matrimonial protection.​

 

FAQ section

Q1: We intended to marry out of community, but no ANC was signed or registered. Are we married in community of property?
Yes. If no valid ANC was executed and registered before the marriage, the default position in South African law is a marriage in community of property.​

Q2: Can I bring a section 21 application without my spouse’s consent?
No. Section 21(1) of the Matrimonial Property Act requires a joint application by both spouses; the court will not grant relief on a unilateral application.​

Q3: What if my spouse refuses because they benefit from the current regime?
If your spouse refuses to join the application, the existing matrimonial property regime remains in place, even if it was not your original intention.​

Q4: Is there any remedy if the problem was caused by attorney negligence?
Yes. You may have a professional negligence claim against the attorney or notary whose failure to execute or register the ANC caused you financial loss.​

If you and your spouse are married under a regime you never intended because of attorney or notarial negligence, or if your spouse is refusing to cooperate in correcting the position, you should obtain detailed, personalised advice before taking any step. Contact Bregman Moodley Attorneys today to discuss your matrimonial property position, assess potential remedies against negligent practitioners, and explore the best strategy to protect your assets and family.​

Can Your Complex Force You to Use Facial Recognition?

 

Many South Africans are being told they must use facial recognition just to enter their own complexes. But under POPIA, your face and ID are not “just another” data point – they are highly protected information, and estates cannot simply force you into biometrics without a lawful basis and a real choice.

A client recently asked:

“My complex now uses facial recognition at the gate. They want my ID and face on a third‑party system. I’ve said I don’t consent and asked for another way to access my home, but they’re ignoring me. Can they really force me under POPIA?”

Under POPIA, facial recognition is biometric data – special personal information that can only be used on strict legal grounds, with proper safeguards. Consent must be voluntary, informed and specific. It’s hard to call it “voluntary” if the message is effectively: no biometrics, no access to your own home.

Bodies corporate and HOAs must also consider less intrusive options (cards, remotes, PINs) and give clear information about what they collect, where it’s stored, who sees it and for how long.

In practice, we:

• Review the estate’s rules and POPIA documents
• Send a formal objection and demand a reasonable, non‑biometric access method
• If needed, help lodge a complaint with the Information Regulator or approach court

Thinking of scrapping your 13th cheque? A recent Labour Court case is a cautionary tale for employers.

 

​

Can employers scrap a 13th cheque? A recent Labour Court ruling warns against unilateral changes to contractual bonuses in South Africa.​

#LabourLawZA #EmploymentContracts #HRCompliance

In Chemical Energy, Paper, Printing, Wood and Allied Workers Union obo Members v Avacare Health Group (Pty) Ltd and Another (C438/2024), the Labour Court found that an employer’s unilateral decision to stop paying a contractual 13th cheque and replace it with a performance‑based bonus amounted to a breach of contract.​

The employer:

• Abolished the 13th cheque and introduced a performance‑linked bonus.
• Offered salary increases to employees who accepted the change and did not challenge it.
• Indicated that strike action against the change would be “ineffective and futile”.​

Employees argued that the 13th cheque was a contractual benefit. The employer maintained it was merely a workplace practice. During the dispute process, the employer eventually conceded that the 13th cheque was in fact a contractual right, and the court ordered payment of the unpaid 13th cheques.​

The court criticised:

• The attempt to mischaracterise a contractual benefit as a mere practice.
• The “stick and carrot” approach of trading salary increases for relinquishing contractual rights, while discouraging collective action.​

Key lessons for employers:

• A 13th cheque is not a statutory requirement in South Africa – but once you include it in an employment contract, it becomes a binding contractual obligation.​
• You cannot unilaterally withdraw or change contractual benefits, even in the name of “modernising” remuneration structures.
• Distinguish carefully between:
• Contractual benefits (e.g. guaranteed bonuses, 13th cheques in the contract), and
• Workplace practices (customs or discretionary benefits not written into the contract).​
• If you need to change contractual benefits:
• Conduct a proper legal and HR review.
• Consult meaningfully with affected employees or unions.
• Obtain agreement to any variation.
• Avoid coercive incentives or threats that may later be viewed as undermining collective bargaining.​

Handled incorrectly, a well‑intentioned incentive scheme can result in findings of breach of contract, reputational damage, and unnecessary litigation.

 

Thinking about divorce in South Africa? Here’s what you need to know

Divorce in South Africa is mainly governed by the Divorce Act 70 of 1979.

If you’re considering divorce, it helps to understand:

 

• On what grounds you can get divorced
• What the court looks at
• What happens to your status, property and finances

 Grounds for divorce

 In South Africa, there are only two legal grounds for divorce:

 

• Irretrievable breakdown of the marriage
• Mental illness or continuous unconsciousness of a spouse

Irretrievable breakdown

Most divorces are granted on this ground.

It means the marriage has broken down so badly that there is no reasonable chance of getting back together. 

The cause of the breakdown is not strictly important, but the court looks at certain facts to decide whether the marriage has indeed broken down, for example:

 

• You and your spouse have not lived together as husband and wife for at least one continuous year.
• Your spouse has committed adultery, and you feel you cannot continue with the marriage.
• Your spouse has been declared a habitual criminal and is serving a sentence.

These are examples, not an exhaustive list. The court can also look at things like:

 

• Refusal of marital privileges (e.g. no physical relationship)
• Serious emotional or physical abuse
• Ongoing conflict and incompatibility
• Even your own adultery
• A clear, unilateral decision by one spouse that the marriage is over

If the court is satisfied that the relationship has broken down irretrievably, it can grant a divorce. 

Mental illness or continuous unconsciousness

In more unusual cases, a divorce can be granted on the ground of a spouse’s mental illness or continuous unconsciousness. 

Mental illness

The court can grant a divorce if:

• Your spouse has been admitted to and detained in a mental institution or similar facility under the relevant mental health laws; and
• They have not been discharged for at least two years before you start the divorce; and
• At least two psychiatrists, appointed by the court, confirm that your spouse is mentally ill and there is no reasonable prospect of recovery. 

Continuous unconsciousness

The court can also grant a divorce if:

• Your spouse is unconscious due to a physical condition, and
• They have been unconscious for at least six months continuously. 

These grounds exist for extreme situations where the spouse is permanently inaccessible, and the marriage cannot function. 

What happens when you get divorced? 

Personal consequences 

Once the court grants a divorce:

• Your marital status changes – you are no longer married to each other.
• You are free to marry again in the future, if you wish. 

Patrimonial (financial and property) consequences

What happens to your assets and finances depends on:

• Your marital property regime (how you were married)
• Whether you married before or after 1 November 1984
• Whether the court grants a forfeiture or redistribution order 

Common regimes include:

• In community of property
• Out of community of property with accrual
• Out of community of property without accrual 

If you married after 1 November 1984 with a standard antenuptial contract (ANC) excluding community, the accrual system often applies. In that case, the difference between the accrual (growth) of your estates during the marriage is shared, usually equally, subject to the rules in your ANC and the Act. 

Redistribution orders (mainly for older “out of community” marriages)

Before 1984, many couples married out of community of property without accrual. In those marriages, one spouse could leave the marriage with far less, even after years of contribution.

To soften this, the law allows a court to make a redistribution order in certain cases. This means the court can order one spouse to transfer assets (or a portion of them) to the other to correct serious inequality. 

When can a redistribution order be considered?

Generally, the court looks for:

• A marriage before 1 November 1984, out of community of property, where community of property, profit and loss and accrual were all excluded in the ANC.
• An application for a redistribution as part of the divorce case.
• The spouse against whom the order is sought has more assets than liabilities.
• The spouse asking for redistribution has contributed (directly or indirectly) to the maintenance or growth of the other spouse’s estate during the marriage (for example, by working, running the household, raising children, supporting a business).
• The court is satisfied that making such an order is just and equitable in the circumstances. 

What does the court consider?

When deciding what to transfer, the court considers:

• The current means and obligations of both parties
• Any donations made between spouses during the marriage
• Any forfeiture orders
• Any other factor the court believes is relevant 

Forfeiture of benefits

A forfeiture order allows the court to say that one spouse must forfeit some or all of the benefits they would otherwise receive from the marriage.

Under section 9 of the Divorce Act, the court can grant a forfeiture order when divorcing on the ground of irretrievable breakdown, but only if one spouse would be unduly benefited compared to the other. 

This can include:

• Sharing in a joint estate (in community of property), or
• Sharing in the accrual of the other spouse’s estate, if you married out of community with accrual after 1 November 1984. 

What does the court look at?

When deciding on forfeiture, the court considers:

• How long the marriage lasted
• The circumstances that caused the breakdown of the marriage
• Any serious misconduct by either spouse
• Whether one spouse will receive an undue benefit if forfeiture is not ordered 

If you want forfeiture, you must:

• Specifically claim it in your divorce papers, and
• Set out the facts you rely on. 

You cannot usually seek forfeiture later – it must be dealt with at the time of the divorce. 

Dissolution of marriage on presumption of death

If a spouse goes missing and is presumed dead, the Dissolution of Marriages on Presumption of Death Act allows the High Court, when it grants an order presuming death, also to order that the marriage is dissolved. 

This is a special situation, but it gives certainty to the remaining spouse. 

How to get started if you are thinking of divorce

For a layperson, the legal detail can be overwhelming. In practice, most people start by:

 

1. Getting clarity on their marital regime (how they are married).
2. Listing assets and debts in both names.
3. Thinking through issues like care of children, maintenance, and where each spouse will live.
4. Consulting an attorney to understand:
• Whether the marriage has legally “broken down”
• What a realistic financial outcome might look like
• How to structure a settlement agreement to avoid a long, expensive trial

Clear, early advice can save time, money and emotional strain. 

FAQS

1. What law governs divorce in South Africa?
   Divorce is mainly governed by the Divorce Act of 1979. It sets out when a court can grant a divorce and what it may order about children, property, and finances.
2. What are the legal grounds for divorce in South Africa?
   There are two grounds: irretrievable breakdown of the marriage, or a spouse’s mental illness or continuous unconsciousness in limited, serious cases.
3. What does “irretrievable breakdown of the marriage” mean?
   It means the relationship is over and there’s no real chance of reconciliation, regardless of who is “at fault”.
4. What does a court look at to decide if the marriage has broken down?
   The court considers the overall picture: time living apart, adultery, abuse, ongoing serious conflict, lack of intimacy, or a clear decision by one spouse that the marriage is over.
5. Can I still get divorced if I was the one who committed adultery?
   Yes. The question is whether the marriage has broken down, not who caused it.
6. When can divorce be granted because of mental illness?
   Only in narrow cases where a spouse has been in a mental health institution for at least two years and specialists confirm there’s no reasonable prospect of recovery.
7. When can divorce be granted because a spouse is unconscious?
   If a spouse has been continuously unconscious (for example, after an accident) for at least six months and the condition is ongoing.
8. What happens to my status once we divorce?
   Once the divorce is granted, you are no longer married to each other, and you are free to marry again.
9. Why does my marital property regime matter?

It determines who owns what and how assets and debts are divided. It depends on whether you are married in community of property, out of community with accrual, or out of community without accrual.

10. What is the difference between “in community” and “out of community”?
    In community: everything (assets and debts) is shared and usually split equally. Out of community: each spouse has a separate estate, with or without sharing the growth (accrual) during the marriage.
11. What is the accrual system?

Each spouse keeps their own estate, but the growth of their estates during the marriage is compared and the spouse whose estate grew more usually shares part of that growth.

12. What is a redistribution order?

In certain older out‑of‑community marriages (mainly before 1 November 1984), the court can order one spouse to transfer assets to the other to correct serious financial unfairness.

13. What does the court consider for a redistribution?
    It looks at both spouses’ financial positions, their direct and indirect contributions (including homemaking and childcare), and whether a redistribution would be fair in all the circumstances.
14. What is forfeiture of benefits?

Forfeiture means a spouse must give up some or all of the benefits they would usually receive from the marriage because it would be unfair for them to keep those benefits.

15. When will a court order forfeiture?

When, considering the length of the marriage, the reasons for the breakdown, and any serious misconduct, one spouse would otherwise receive an unfair or “undue” benefit.

16. What is an “undue benefit”?

It is a benefit that is clearly out of proportion and unfair, for example where a very short marriage would otherwise give one spouse a large financial gain.

17. Can I claim forfeiture after the divorce is final?
    No. Forfeiture must be claimed and decided during the divorce proceedings.
18. What if my spouse is missing and presumed dead?
    You can apply to the High Court for an order presuming death. The court can also declare the marriage dissolved so you are no longer legally married.
19. What first steps should I take if I’m considering divorce?
    Confirm how you are married, list your assets and debts, think about arrangements for children and maintenance, and get legal advice on your rights and options.
20. Why speak to a divorce attorney early?

Early advice helps you understand likely outcomes, avoid costly mistakes, and work towards a practical settlement instead of a long, expensive court battle.

 

  

Am I Married Under Customary Law?”

Tsambo v Sengadi shows that you may be legally married under customary law even if some traditional rituals were not performed in the traditional manner.

In Tsambo v Sengadi (244/19) ZASCA 46, the Supreme Court of Appeal (“SCA”) gave important guidance on when a South African customary marriage will be regarded as valid, even if not every traditional ritual was performed in the classic way. The judgment is best known as the “HHP case”, because it concerned the late musician Jabulani “HHP/Jabba” Tsambo and his partner, Lerato Sengadi.

The central dispute was whether a valid customary marriage existed between HHP and Sengadi. His father argued that they were not married because a separate, formal “handing over of the bride” ceremony, with slaughtering of an animal and bile rituals (“go gorosiwa”), had never taken place. At most, he said, the parties had reached lobola agreement and held a celebration – but marriage, in the full customary sense, was still to come. Sengadi, on the other hand, argued that their lobola negotiations, the way she was treated on the day, and their life together afterwards all pointed to a completed customary marriage.

The SCA took a modern, realistic view of customary law. It emphasised that the Recognition of Customary Marriages Act 120 of 1998 requires three things for a post‑Act marriage: both parties over 18, both consenting to be married under customary law, and a marriage that is “negotiated and entered into or celebrated in accordance with customary law”. The Act deliberately does not spell out every ritual, because it defers to living customary law – how a particular community actually practices its customs today, not how they are described in old textbooks or case law.

On the facts, the couple’s story strongly supported a marriage. HHP proposed in Amsterdam; both families agreed to follow African custom; lobola was formally negotiated at Sengadi’s family home; a written agreement was signed; and HHP paid more than the required deposit immediately thereafter. During the celebrations, his aunts dressed Sengadi in what they expressly called her “wedding dress”, matching HHP’s attire, introduced her publicly as his wife and welcomed her into the Tsambo family. His father hugged and congratulated her as his son’s wife. Thereafter, the couple lived together as husband and wife, and she even registered him as her “spouse” on her medical aid.

The father tried to resist this by relying on earlier cases that treated the physical “handing over of the bride” at the groom’s homestead as a decisive requirement for validity. The SCA rejected such a rigid approach. Building on its earlier decision in Mbungela v Mkabi, the court reaffirmed that the handing over is important in many communities, but it is not always a strict, make‑or‑break element. Customary law is dynamic and evolving. In practice, families may abbreviate or adapt rituals due to cost, time pressures, or personal choices, and that flexibility has always existed in customary law.

What the court looked at was the overall picture: did the families and the couple themselves behave in a way that shows they intended and understood a customary marriage to have been concluded? In this case, the answer was yes. The dressing of the bride by the groom’s aunts, her formal introduction and acceptance as a wife, the father’s congratulations, the joint celebration, and subsequent cohabitation all pointed to a completed marriage, not an incomplete lobola process with a marriage still pending.

An important procedural aspect was that the matter came before the High Court on motion (affidavits), and the father argued there were factual disputes requiring oral evidence. The SCA applied the Plascon‑Evans rule and found there was, in truth, no genuine dispute of fact. Sengadi’s version was detailed and supported by affidavits and video; the father responded largely with bare denials, and failed to file confirmatory affidavits from the very people (such as the aunts) who could have supported his account. In such circumstances, courts are entitled to accept the applicant’s version and decide the case on paper.

The SCA upheld the High Court’s core outcome – that a valid customary marriage existed and that Sengadi was HHP’s lawful customary wife – but corrected one overreach. The High Court had gone on to declare the “handing over” custom unconstitutional, even though no one had pleaded or argued that issue. The SCA stressed that courts may not casually strike down customs or laws on their own motion; constitutional issues must be properly raised, necessary to decide, and fully argued by the parties.

For clients and practitioners, the practical messages are clear:

• A customary marriage will not fail just because a particular ritual (such as a formal handover ceremony) did not happen exactly as described in older precedent.
• Courts will look at intention, conduct and community practice: were lobola negotiations concluded, did the families celebrate the union as a marriage, and did the couple live as spouses with family acceptance?
• Registration at Home Affairs is important for record‑keeping, but non‑registration does not automatically invalidate an otherwise valid customary marriage.

In short, if your families and community treated you as married, a court may well agree – with major consequences for inheritance, maintenance, and funeral and decision‑making rights.