Can you sign or update an Antenuptial Contract after Marriage?

Can you sign or update an antenuptial contract after marriage?

An antenuptial contract (ANC) is a notarial agreement signed before marriage that determines your marital property system — for example, whether you’re married in community of property or out of community of property, and whether the accrual system applies.

1. Before marriage — easy and straightforward

If you sign your ANC before the wedding and have it registered with the Deeds Office within 3 months, it’s simple and inexpensive.

You just visit a notary public, sign the document, and the notary handles registration.

That’s the ideal and easiest route.

2. After marriage — possible, but only by court order

If you didn’t sign an antenuptial contract before your wedding, the law automatically treats you as married in community of property.

Changing that after the fact is not automatic — you must apply to the High Court under section 21(1) of the Matrimonial Property Act 88 of 1984.

This is known as a postnuptial change of marital regime.

You and your spouse must apply jointly, and the court will only approve it if:

1. There are sound reasons for the change (for example, you didn’t understand the consequences before marrying);
2. Creditors are notified and won’t be prejudiced; and
3. There’s full disclosure of your assets and debts.

The process involves:

1. Drafting a founding affidavit and a new notarial contract;
2. Giving notice to the Registrar of Deeds and SARS;
3. Publishing notices in the Government Gazette and a local newspaper; and
4. A hearing before a High Court judge.

It usually takes a few months and can be very costly, depending on complexity and legal fees.

3. Updating an existing antenuptial contract

If you already have an ANC but want to change its terms (for example, add or remove the accrual clause), you can’t just “amend” it casually either — you again need a court order to alter your marital property system.

You can’t simply sign a new ANC or an amendment privately, even if both spouses agree.

Without court approval, it’s invalid and won’t be recognised by banks, the Deeds Office, or the courts.

4. When should you consider changing your marital regime?

You might want to change your ANC or regime if:

1. You got married in community of property but want to protect assets or business interests;
2. You’re starting a new business and don’t want your spouse’s assets exposed to risk;
3. You want to switch from “without accrual” to “with accrual” (or vice versa);
4. You simply didn’t understand your original regime when you married.

A good family attorney can advise whether a change makes financial and legal sense — and help you prepare the court application.

5. What about religious or customary marriages?

The same principle applies once your marriage is legally recognised under the new law, your marital property system will depend on how you register and what contract (if any) you sign.

Muslim and customary couples will also be able to choose between community or out of community systems — but they’ll need to record that choice properly with the Department of Home Affairs and a notary.

In short:

1. Signing an ANC before marriage is simple.
2. After marriage, it’s possible — but only through a High Court application.
3. You cannot just “update” it privately.

Legal advice is essential to avoid mistakes that could cost you later.