A postnuptial contract is like an antenuptial contract, except it is drawn up after a couple is already married.
It is becoming more and more common for couples planning marriage to draw up an antenuptial contract (ANC), in which they define the division of property in the event of divorce. Marriages involving an ANC are out of community of property. If there is no ANC, the marriage is automatically in community of property.
Sometimes a couple decides to change their marital regime. This can happen for a variety of reasons. The most common is that no ANC was drawn up before the wedding, and at a later date the couple chooses to change the regime to out of community of property.
Both parties must agree the change of regime, and the postnuptial contract must be approved by the High Court. Approval is rarely withheld, but certain conditions must be satisfied.
The Court will want to be convinced that the following requirements have been fulfilled before granting the change of regime:
- There must be sound reasons for the proposed change. These must be fully motivated in the application.
- Sufficient notice of the proposed change must be given to all creditors of the spouses. Creditors must be named in the application.
- The Court must be satisfied that no other person will be prejudiced by the proposed change.
This could be a child of the marriage or other dependant, and the application must contain a statement specifying that there is no prejudice to any third party.There is a process that must be followed, with associated timelines. SD Law will guide you through the process and can ensure your application meets all the legal requirements.