Married Without an Antenuptial Contract — What Now?

What 'in community of property' means

Your two estates have merged into one joint estate that you both own in equal, undivided halves. Almost everything you each owned before the marriage, and everything acquired during it, usually forms part of that joint estate.

Importantly, debts are shared too. The joint estate is liable for the debts of both spouses, even debts that one spouse took on alone.

Decisions that need both spouses' consent

Because you own everything together, the Matrimonial Property Act 88 of 1984 requires the consent of both spouses for certain major transactions.

• Selling or bonding immovable property such as a house.
• Entering certain credit agreements or standing surety in some cases.
• Selling significant shared assets and investments.

What happens at divorce or death

When a marriage in community of property ends, the joint estate is generally divided equally between the spouses or their estates. Each spouse, or the deceased's estate, is entitled to one half.

If the joint estate is insolvent, both spouses are affected, because the debts are shared. This is one of the main reasons couples consider changing their regime.

Can you change it after marriage?

Yes. Section 21 of the Matrimonial Property Act 88 of 1984 allows a married couple to apply to the High Court to change their matrimonial property system, for example from in community of property to out of community of property.

The court must be satisfied that there are sound reasons for the change, that proper notice has been given to creditors, and that no person will be prejudiced. If granted, the couple signs a postnuptial notarial contract that is then registered.

The general steps to change your regime

• Consult an attorney to confirm the change is suitable for your situation.
• Give notice to creditors as required by law.
• Apply to the High Court under section 21 for permission to change.
• Once granted, sign and register the postnuptial contract through a notary.