Amendment of Antenuptial Contracts in South Africa

Can married parties vary the terms of their existing antenuptial contract (ANC), without going to court?

Introduction to Legal Principles

ANCs are crucial legal documents that determine the financial and proprietary consequences of a marriage. In South African law, there are strict rules governing the amendment of these contracts after marriage.

As a general rule in our law, an antenuptial contract cannot be amended between the parties after the marriage has been concluded (Ex parte De Zwaan and Another 1909 TS 676). 

Such a contract can, however, be amended by the Court, but only in a very limited sense. In Ex parte Venter et Uxor 1948 (2) SA 175 (O), it was held that the court’s power to authorize the revocation or amendment of antenuptial contracts, is strictly limited to those cases where the marriage is dissolved or where the contents of the written contract did not give effect to the actual agreement between the parties. 

Key Legal Provisions

• Section 21 of the Matrimonial Property Act: Allows spouses to jointly apply to court for permission to change their matrimonial property system, provided there are sound reasons, sufficient notice to creditors, and no prejudice to other parties. The provisions of the Matrimonial Property Act can only be utilized to change the matrimonial property regime of spouses and not the terms of an antenuptial contract. 
• Section 88 of the Deeds Registries Act: Authorizes post-nuptial execution of a notarial contract with the effect of an antenuptial contract, if the terms were agreed upon before marriage.

Amendment Process

• Before Marriage: Parties can freely modify or revoke the ANC through a notarial deed.
• After Marriage: ANCs should only be amended through a court order.

The High Court application

The application is costly, and the parties can conclude an addendum to their ANC and agree that on 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.

Court Order:

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:

1. First and Second Applicants are hereby granted leave to conclude a notarially executed amendment to the antenuptial contract concluded between them on ….
2. 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:

1. the parties are married in terms of a duly registered antenuptial contract with reference H….. (‘the existing antenuptial contract’).
2. 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 …..  

4.        the parties have agreed to be bound by the following provisions as if these provisions formed part of the existing antenuptial contract”. 

Conclusion

Amending an ANC after marriage in South Africa is a complex legal process requiring court intervention. While alternatives like addendums exist, they carry risks of being declared unenforceable. The safest approach is to seek a High Court order for any post-marriage ANC amendments.