Can married parties vary the term of their existing antenuptial contract (ANC), without going to court?
It is a general rule in our law that an ANC cannot
be amended between the parties after the conclusion of marriage and only a
court can amend it.
The
High Court application is costly. The parties can
conclude an addendum to their ANC and agree that on the dissolution of the marriage
one party will not argue that the addendum is unenforceable.
However,
an application to court is preferable. If the marriage ends in divorce and one
party disputes the validity of the addendum, it is likely that a court will
declare it void and unenforceable.
The
High Court order would read something like this:
Having
read the papers filed of record and having heard Counsel for the Applicants, it
is ordered that:
- First and Second Applicants are hereby granted
leave to conclude a notarially executed amendment to the antenuptial
contract concluded between them on ….
- The Registrar of Deeds be and hereby is
authorised, subject to his/her requirements, to attend to the registration
of such amendment in the form annexed hereto marked ‘A’.”
The
new Antenuptial Contract would normally start off with terms reading as
follows:
“AND
THE APPEARERS DECLARED THAT WHEREAS:
- the parties are married in terms of a duly
registered antenuptial contract with reference H….. (‘the existing
antenuptial contract’).
- they wish to amend the terms of the existing
antenuptial contract by the supplementation thereof in the manner set out
below.
3.
the parties are authorised to do so in
terms of an order dated ………………. in the South Gauteng High Court, Johannesburg,
under case number …..
- the parties have agreed to be bound by the
following provisions as if these provisions formed part of the existing
antenuptial contract”.
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