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As the names suggest, a prenuptial agreement happens before marriage, and a postnuptial agreement is obtained afterwards. A prenuptial agreement can alter one’s current matrimonial property system in many ways, and most are situation dependant and therefore unique. There are various reasons for entering into a postnuptial agreement. For instance, if the financial situation of one spouse changes radically, the need may arise to protect his/her property from negligence or fraud. However unromantic this may sound, a postnuptial agreement can in fact prevent future animosity by placing everyone on the same page from the beginning. In this way both spouses are safe from the negligence of the other.
In South Africa, the relevant parties must jointly apply to the high court for permission to make this change. Furthermore, there needs to be a valid reason for wanting to enter into a postnuptial agreement; without sound reasoning the court will not approve the change. Sufficient notice also has to been given to all creditors of both spouses.
While spouses may legally have assets completely separate from the other, these assets still need to be declared and factored into the situation. Another important point to note is that no other person or persons may be prejudiced by this change in the matrimonial property system. If this is found to be the case, the court will not approve the change.
A postnuptial agreement can be tailor-made to suit any specific situation. For example, the financial responsibilities of each spouse with regards to the care of pre-emancipated children in the case of divorce could be outlined, or the division of communal property upon divorce may be stated. As was mentioned before, as opposed to this being perceived as a negative or argumentative statement, the postnuptial agreement should be viewed as a safeguard and a peacekeeping treaty that all concerned parties had agreed to beforehand in the case of separation.
As the world we live in increases in pace and changes ever faster, the postnuptial agreement has become more and more popular. If done correctly and conscientiously, with all parties’ best interests at heart, this decision can prove to be invaluable in the unfortunate instance of divorce.