Authored By: Sisanda Hlatshwayo
Boston City Campus
Abstract
Couples who wish to enter into an antenuptial contract, also known as a prenup, unknowingly enter into a customary marriage without being aware of the fact that an antenuptial contract must, according to the South African law, be entered into before a customary marriage. Therefore, they miss the opportunity to enter into an antenuptial contract. However, they can enter into a postnuptial contract, which can be entered into after marriage. This article explains what a postnuptial contract is, the requirements of a valid postnuptial contract and the advantages of a postnuptial contract. It is important for couples to be aware of the steps they can take should they miss the opportunity to sign an antenuptial contract before their customary marriage, which are signing a postnuptial contract.
Introduction
Most couples lack information about what they could do if they entered into a customary marriage without signing an antenuptial contract, also known as a prenup. This often happens because they are unaware of the fact that lobola (the bride price) and traditional weddings are considered as evidence of a customary marriage. Therefore, they miss the opportunity to draft an antenuptial contract, also known as a prenup, before the customary marriage which is in community of property by default unless an antenuptial contract was signed by the parties before the event of the customary marriage. It is impossible to enter into an antenuptial contract after the customary marriage. A postnuptial contract refers to a legally binding contract that is entered into by couples after marriage, and is approved by the High Court of South Africa, to change how their assets can be managed and divided among the couples during their marriage and upon their divorce. This contract is entered into at the absence of an antenuptial contract. Being knowledgeable about postnuptial contracts will give couples a second chance to make a sound legal decision.iIt is important for couples to be aware of the steps they can take should they miss the opportunity to sign an antenuptial contract before their customary marriage, which are signing a postnuptial contract.
Research Methodology
The Doctrinal method of research was used to conduct this research. The research was done using primary sources, such as statutes and laws and secondary sources such as online legal articles by diverse authors.
Legal Framework in South Africa
If a couple did not enter into an antenuptial contract before customary marriage, their marriage is automatically in community of property according to the Marriages Act 120 of 1998. Postnuptial contracts are registered in terms of section 21(1) of the Matrimonial Property Act after the marriage if no antenuptial contract was entered into. An application of a postnuptial contract is brought before a court of competent jurisdiction, which grants an order the registration of the postnuptial contract. Once the order has been granted to the married couple, they may sign the postnuptial contract, and it will be registered in the Deeds Office. Thereafter, the postnuptial contract is then declared as out of community or property with or without accrual. Section 88 of the Deeds Registries Act 47 of 1937 enables married couples to execute a postnuptial contract under certain circumstances: Section 88 of the Deeds Registries Act 47 of 1937 states that the court reserves the right to authorize a postnuptial execution of an antenuptial contract if the terms of an antenuptial contract were concluded before the marriage took effect. In simple terms, the court may grant the married couple permission to register the antenuptial contract if the terms of the contract were concluded before the marriage took effect. The court may inflict appropriate conditions for the antenuptial contract. The married couple must make a formal application which explains the reason for the antenuptial contract not being registered before the marriage took place and provide evidence that they reached an agreement before the marriage.ii In order for the married couple to enter into a postnuptial contract, the Deeds Registries Act 47 of 1937 provides good reasons for the presented change, the Registrar of Deeds and all creditors must be given an adequate notice of the presented change, and it must satisfy the court that no party would be prejudiced by the presented change. iii
The Requirements of a Postnuptial Contract
- According to section 97(1) of the Deeds Registry Act, the married couple must give a notice to the registrar of deeds.
- The draft of postnuptial contract must be annexed to the application and initialled. • The married couple must publish the notice of intent in the Government Gazette and on two local newspapers prior to the hearing of the application.
- The date on which the application will be made must be explicitly stated on the notice and the notice must enable interested parties to put together written representations to the registrar of the High Court of South.
- All creditors of the married couple must be given two weeks’ notice by the registered post and the application must comprise of a list of creditors, along with proof that they were given notice.iv
Understanding Postnuptial Contracts in Depth
The Significance and Importance of Postnuptial Contracts
Postnuptial contracts offer protection of married couples’ assets throughout the marriage. Postnuptial contracts offer financial clarity and security because there are unexpected events that took place throughout the marriage such as career shifts, inheritances, etc. By updating financial terms and responsibilities on the contract, married couples prevent disputes from arising as a result of the unexpected events that may take place throughout their marriages. Postnuptial contracts safeguard individual interests. For example, when a married in dividual receives an inheritance, they may exclude the ownership of the inheritance, including the liability for debts for their spouse, on the postnuptial contract. Thus, excluding the inheritance from being part of the marital property and preserving it. Postnuptial contracts protect the interests of children, especially in blended families. The married couple consider the educational expenses and inheritance rights for their children. This ensures that there is fairness, the children are protected and there is a sense of security and stability. Postnuptial contracts assist in building trust and transparency between married couples through communicating openly about finances. This improves their marriage. v
The Reasons People Enter into Postnuptial Contracts
There are several reasons why married couples enter into postnuptial contracts. Many people are unaware that lobola (the African bride price) is evidence of a customary marriage. They had initially planned to enter into an antenuptial contract after the customary marriage celebrations, before registering their marriage in court. Therefore, they miss the opportunity to register an antenuptial contract and their marriage automatically becomes in community of property in terms of the Marriage Act 120 of 1998. Some antenuptial contracts were concluded before the marriage took effect, yet they were not registered. Married couples enter into postnuptial contracts because they want to trade freely, and the exposure of the spouse to creditor and business risk. Married couples may try to eliminate the risk of joint estates should one of them die. The married couple may find it difficult to perform effective Estate or Tax planning while being married in community of property. One of the spouses would not be held liable for the debt of the other spouse after the postnuptial contract has been registered. Being married in community of property results in conflict for married couples. If a spouse has a business in their name, the postnuptial contracts guarantee protection of their assets. Some married couples want to enter commercial transactions without requiring consent from each other. A postnuptial contract enables married individuals to be responsible for their own estates, build their own estates and be liable for their own debts.vi Some people discover a different, risky or untrustworthy version of their spouses after the marriage took effect and decided to change their minds about the distribution of their estates.
Suggestions / Way Forward
Upon obtaining knowledge about postnuptial contract, it is advisable to have a further discussion with a legal professional on the way forward in drafting postnuptial contracts. If the married couple had entered into an antenuptial contract without registering it prior to the marriage, they may register for the postnuptial execution of an antenuptial contract with consent from the High Court. They must prove that they had entered into antenuptial contract before the marriage in order to proceed with the postnuptial execution of an antenuptial contract. The law can be improved to enable married couples who have no plans of divorce to enter into postnuptial contracts, which grants them autonomy over their finances, debts, and assets because consent can be withdrawn. Some married couples may have realized that they made a mistake by marrying in community of property because they discovered a different version of their spouses after the marriage took effect. It should be taken into account that some people may decide to marry in community of property to escape debt by ensuring that their spouses are liable for the debt. Upon finding that information out, the indebted spouse may enter into a postnuptial contract to withdraw the consent of being liable for their spouse’s debts. The South African jurisdiction should relook at the laws governing postnuptial agreement to ensure the best interests of married couples. This is in reference to the case of A M v H M (2020).
Judicial Interpretation
In the case of A M v H M (2020), the issue was whether the validity of a postnuptial contract between a married couple and whether the changes made to the postnuptial contract may be enforceable. Before the case was sent to the Constitutional Court, there are events that took place: On 28 August 1993, Ms A M and Mr H M got married out of community of property without accrual and registered an antenuptial contract in terms of the Matrimonial Property Act 88 of 1984. In the course of their marriage, Ms A M drafted a postnuptial contract, which stated that Mr H M would put their antenuptial agreement aside, pay her maintenance and that she would be entitled to half of the estate. On April/May 2014, Ms A M handed the postnuptial contract to M r H M twice for his signature. However, he refused to sign it. There was no mention of a divorce at that time. Mr H M signed the postnuptial contract on 10 November 2014. There was still no mention of divorce at that time. Ms A M handed the postnuptial contract to her friends for safekeeping and the couple proceeded with their marriage as usual. On 30 November 104, Ms A M confronted Mr H M on his infidelity, which led to the end of their marriage. Mr H M filed for divorce on 15 January 2015. Ms A M requested for the postnuptial contract to be declared valid and binding between her and Mr H M in her counterclaim. She also stated that they entered into the postnuptial contract with the intention of divorce afterward and the postnuptial contract was meant to handle the consequences and distribution of estates after divorce. The Constitutional Court found that the postnuptial contract was invalid and not enforceable because there was no mention nor intention of divorce prior to drafting and signing the contract. Postnuptial contracts can be entered into with the intention of coming to a binding agreement with the aim of divorce proceedings.
Conclusion
Most couples lack information about what they could do if they entered into a customary marriage without signing an antenuptial contract, also known as a prenup. This often happens because they are unaware of the fact that lobola (the bride price) and traditional weddings are considered as evidence of a customary marriage. Therefore, they miss the opportunity to draft an antenuptial contract, also known as a prenup, before the customary marriage which is in community of property by default unless an antenuptial contract was signed by the parties before the event of the customary marriage. Postnuptial contracts offer protection of married couples’ assets throughout the marriage, protects children’s interests and offer financial clarity and security. There are several reasons why people enter into postnuptial contracts. It is advisable to have a further discussion with a legal professional on the way forward in drafting postnuptial contracts. Being knowledgeable about postnuptial contracts will give couples a second chance to make a sound legal decision. It is not too late to change your mind.
Reference(S):
Primary sources
Marriages Act 120 of 1998
Matrimonial Property Act
Deeds Registries Act 47 of 1937
Deeds Registry Act
A M v H M (CCT95/19) [2020] ZACC 9; 2020 (8) BCLR 903 (CC) (26 May 2020) Matrimonial Property Act 88 of 1984
Secondary Sources
Unknown, “Marriage and Matrimonial Property” (MDM ATTORNEYS NOTARIES CONVEYANCERS) <https://www.vdm.law/legal-services/marriage-and-matrimonial property/postnuptial-contracts> accessed 9 December 2025 Law Blog MPA, “POSTNUPTIAL EXECUTION of ANTENUPTIAL CONTRACTS” (Meyer & Partners Attorneys, 25 September 2024) <https://meyerattorneys.co.za/2024/09/25/postnuptial-execution-of-antenuptial-contracts/> accessed 9 December 2025
Unknown, “POSTNUPTIAL CONTRACTS” (ANTENUPTIAL CONTRACTS.co.za) <https://www.antenuptialcontracts.co.za/postnuptial-contracts-2> accessed 9 December 2025
Unknown, “POSTNUPTIAL CONTRACTS” (Van Deventer & Van Deventer Inc. Attorneys) < https://www.vandeventers.law/Legal-Services/Marriage-Matrimonial-Property/Postnuptial Contracts> accessed 9 December 2025
Lucinda Holliday, “The importance of postnuptial agreements” (BlaserMills Law, 1 August 2024) < https://blasermills.co.uk/insights/article/the-importance-of-postnuptial-agreements/> accessed 12 December 2025
Unknown, “POPULAR REASONS COUPLES DECIDE TO APPLY FOR AND REGISTER POSTNUPTIAL CONTRACT” (ANTENUPTIAL CONTRACTS.co.za) <https://www.antenuptialcontracts.co.za/postnuptial-contracts-2> accessed 12 December 2025
Unknown, “Legal update 2 of 2022: Validity of Postnuptial Agreements” (Momentum investments, February 2022) < https://sls-fresco.momentum.co.za/files/documents/invest and-save/legal-updates/legal-update-2-of-2022-validity-of-postnuptial-agreements.pdf> accessed 9 December 2025
i Unknown, “Marriage and Matrimonial Property” (MDM ATTORNEYS NOTARIES CONVEYANCERS) <https://www.vdm.law/legal-services/marriage-and-matrimonial-property/postnuptial-contracts> accessed 9 December 2025
ii Law Blog MPA, “POSTNUPTIAL EXECUTION of ANTENUPTIAL CONTRACTS” (Meyer & Partners Attorneys, 25 September 2024) <https://meyerattorneys.co.za/2024/09/25/postnuptial-execution-of-antenuptial contracts/> accessed 9 December 2025
iii Unknown, “POSTNUPTIAL CONTRACTS” (Van Deventer & Van Deventer Inc. Attorneys) < https://www.vandeventers.law/Legal-Services/Marriage-Matrimonial-Property/Postnuptial-Contracts> accessed 9 December 2025
iv Unknown, “POSTNUPTIAL CONTRACTS” (ANTENUPTIAL CONTRACTS.co.za) <https://www.antenuptialcontracts.co.za/postnuptial-contracts-2> accessed 9 December 2025 v Lucinda Holliday, “The importance of postnuptial agreements” (BlaserMills Law, 1 August 2024) < https://blasermills.co.uk/insights/article/the-importance-of-postnuptial-agreements/> accessed 12 December 2025
vi Unknown, “POPULAR REASONS COUPLES DECIDE TO APPLY FOR AND REGISTER POSTNUPTIAL CONTRACT” (ANTENUPTIAL CONTRACTS.co.za) <https://www.antenuptialcontracts.co.za/postnuptial contracts-2> accessed 12 December 2025
vii Unknown, “Legal update 2 of 2022: Validity of Postnuptial Agreements” (Momentum investments, February 2022) < https://sls-fresco.momentum.co.za/files/documents/invest-and-save/legal-updates/legal-update-2-of 2022-validity-of-postnuptial-agreements.pdf> accessed 9 December 2025
