One of the main differences between the abovementioned is that the one is executed before a marriage and the other after the marriage.
An Ante Nuptial contract can be defined as a contract which is entered into by parties who wants to get married OUT of community of property. This contract may only be drafted by a Notary Public and must be duly signed by both parties before the Notary Public and two witnesses. This contract must be registered within 3 (three) months after signature thereof at the appropriate Deeds Office, otherwise failure to do so will result in the marriage being entered into IN community of property.
On the other hand, a postnuptial contract is one which is drafted after the marriage has been entered into. In other words, if two parties who entered into a marriage IN community of property and seeks to change the regime, they can ask the assistance of a Notary Public to draft a postnuptial agreement for them in order to change their marriage into one OUT of community of property. The same rules apply to the first mentioned as this agreement also needs to be signed by both parties in front of a Notary Public and two witnesses. It also needs to be registered at the Deeds office within 3 (three) months after signature thereof.
In addition to the abovementioned, if an Ante Nuptial agreement was drafted and signed by both parties but was not registered within the prescribed 3 (months), a postnuptial contract may change the IN community of property matrimonial regime the parties find themselves in, to OUT of community of property. This is done by way of a High Court application. The act regulating the latter mentioned is Section 21(1) of the Matrimonial Property Act 88 of 1984.
- postnuptial contracts
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- Antenuptial and postnuptial contracts