A postnuptial contract is basically an agreement entered into after the parties got married. Often a couple gets married in community of property only to discover that this was not how they intended to get married. They then instruct an attorney to draft a postnuptial contract, which is similar in nature to an antenuptial contract.
If parties wish to marry with the application of the accrual system after they got married, the heading of the agreement would be “Postnuptial Contract with the application of the accrual system in terms of the Matrimonial Property Act, 1984”. Like a normal antenuptial contract, the said document would be stamped by a qualified Notary Public. Not all attorneys are qualified notaries, and an exam must be written by an attorney to qualify as a notary.
The first step however would be to apply to court for authorization to enter into a postnuptial contract. This is a costly procedure, as the court must be satisfied that the postnuptial contract will not prejudice creditors in any way. Often parties are in debt, and being married in community of property one of the parties can be sued for the other’s debt.
The typical starting off clauses would read as follows, for example:
“The Appearers declared that;
a) A marriage was solemnized between them on 10 November 2008 at Cape Town and the marriage still subsists;
b) They are married in community of property;
c) They have been authorized to enter into a postnuptial contract varying their matrimonial property system from in community of property to out of community of property by an Order of the High Court of South Africa ( Cape of Good Hope Division) granted on 5 December 2010 under case number 1523/2010”.
The contract would then be drafted in a format similar to that of a normal antenuptial contract. Each party would set out their respective net commencement values. They would then go on to list any assets which they wish to exclude from the accrual. Typical assets excluded from the accrual would be inheritance received, donations received, any beneficial interest in a trust, any non-patrimonial damages and so forth.
There would also be a clause stating that the rights of any existing creditors will not be prejudiced by the aforesaid terms and conditions. That would usually be the final clause of the postnuptial contract.
A lot of attorneys do not take on the work of drafting a postnuptial contract, as it can be quite complex and the court first has to authorize it. I would strongly urge parties who wish to marry to each consult their own separate attorneys and have a normal antenuptial contract drafted. This could save a lot of time and money at a later stage.
Attorneys would usually charge anything between R10 000 to R25 000 to bring an application authorizing the postnuptial contract. It is a High Court application, which would require an advocate.
article written by Cape Town divorce lawyer, Peter M Baker