Amendment of the Antenuptial Contract (post marriage)

It happens from time to time that a married couple have an antenuptial contract that they signed when they got married and now want to have it amended. It is not a cheap process. The parties would first need to obtain a High Court order allowing them to bring about the amendment; it can then only be amended if stamped by a Notary and both parties are in agreement on the terms of the amendments.

The new Antenuptial Contract would normally start off with terms reading as follows:

“AND THE APPEARERS (THE PARTIES) DECLARED THAT WHEREAS:

1. the parties are married in terms of a duly registered antenuptial contract(‘ the existing antenuptial contract’)

2. the parties are desirous of amending the terms of the existing antenuptial contract by the supplementation thereof in the manner set out below:

3. 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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After these clauses the parties would then in their new antenuptial contract usually reaffirm certain clauses from the original antenuptial contract, and include clauses which they want also to form part of the existing antenuptial contract.

I had a case recently where both parties had started off with a nil nett commencement value in the antenuptial contract. The husband was a wealthy businessman and had excluded his businesses and shares from forming part of the accrual. This would mean that if the parties got divorced, the wife would have no claim to any of her husband’s businesses or shares.

During the course of the fifteen year marriage, a fifteen million rand house had been purchased in the name of both parties. This fixed asset was not mentioned in the original antenuptial contract. The parties wanted to amend the original antenuptial contract to state that in the event if dissolution of the marriage the husband would transfer his half share in the property to the wife. This was more than reasonable, as the husband’s business interests were worth the same if not more than the value of the fixed property.

The amended antenuptial contract furthermore had a clause stating that in the event of dissolution of the marriage, the husband would pay to the wife an amount equivalent in value to R80 000,00 for each year of marriage. The amended antenuptial contract also stated that in the event of dissolution of the marriage, the husband would donate to the wife all furniture and effects in the matrimonial home.

Before an amendment to an antenuptial contract is allowed, the parties would first need to obtain a High Court order allowing them to bring about the amendment. An example of such an order would read as follows:

“________________________________________________________________

ORDER

________________________________________________________________

Having read the papers filed of record and having 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

12 September 1995.

2. The Registrar of Deeds be and hereby is authorised and directed, subject to

his/ her requirements, to attend to the registration of such amendments in the

form annexed hereto marked ‘A’.”

It is a costly procedure to have an antenuptial contract amended as it involves a High Court Application. If however it needs to be done it is best to do it so that in the event of dissolution of marriage there are no disputes as to how the assets should be divided.

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