Amendment of an Antenuptial Contract

From time to time, it happens that a married couple have an Antenuptial Contract (ANC) that they signed when they got married and now want to have it amended. It is a general rule in our law that an ANC cannot be amended between the parties after the conclusion of marriage and only a court can amend it hence it can only be amended if stamped by a Notary and both parties agree on the terms of the amendments. Furthermore, before an amendment to an ANC is allowed, the parties would first need to obtain a High Court order allowing them to bring about the amendment.

An example of what the amendment order might look like is as follows;

• The parties are married in terms of a duly registered antenuptial contract with reference …. (‘the existing antenuptial contract’) and wish to amend the terms of the existing antenuptial contract;

• First and Second Applicants are hereby granted leave to conclude a notarially executed amendment to the antenuptial contract concluded between them on ….

• The Registrar of Deeds is hereby authorized, subject to his/her requirements, to attend to the registration of such amendment;

• The parties have agreed to be bound by the following provisions as if these provisions formed part of the existing antenuptial contract.

Because an antenuptial contract only becomes effective after solemnization of the marriage, there is no reason why the parties thereto cannot exercise their common law right to amend or to cancel such a contract by agreement (Registrar’s Conference Resolutions 33 of 1954, RCR 53 of 1966 and RCR 4 of 1969). Such an amending agreement or notarial deed of cancellation will, naturally, have to be entered into before the conclusion of the marriage and, to be effective against third parties, also be registered in the deeds office. If it is not registered in a deeds registry it will only be effective between the parties. The amending deed will be given an antenuptial contract number by the deeds registry concerned.

If, after executing an antenuptial contract, the parties decide not to proceed with the marriage, it can also be cancelled by the court on application. The Court can also cancel an ANC when the parties change their minds before marriage and decide to be married in community of property.

Where both deeds (i.e., the original agreement and the amending agreement) are lodged simultaneously for registration, both deeds are registered and numbered as one deed. If, however, the amending agreement is lodged at a later stage, that is after registration of the original agreement, a H‑code is allocated to it and it is registered separately (RCR 33 of 1954). In the latter case, the original deed will be endorsed re the amending deed.

It is a costly procedure to have an ANC 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.