Can married parties vary the term of their existing antenuptial contract (ANC), without going to court?

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.

The High Court application is costly.  The parties can conclude an addendum to their ANC and agree that on dissolution of the marriage one party will not argue that the addendum is unenforceable.

However, an application to court is preferable. If the marriage ends in divorce and one party disputes the validity of the addendum, it is likely that a court will declare it void and unenforceable.

The High Court order would read something like this:

Having read the papers filed of record and having heard Counsel for the Applicants, it is ordered that:

1. First and Second Applicants are hereby granted leave to conclude a notarially executed amendment to the antenuptial contract concluded between them on ….
2. The Registrar of Deeds be and hereby is authorised, subject to his/her requirements, to attend to the registration of such amendment in the form annexed hereto marked ‘A’.”

The new Antenuptial Contract would normally start off with terms reading as follows:

“AND THE APPEARERS DECLARED THAT WHEREAS:

1. the parties are married in terms of a duly registered antenuptial contract with reference H….. (‘the existing antenuptial contract’).
2. they wish to amend the terms of the existing antenuptial contract by the supplementation thereof in the manner set out below.
3. the parties are authorised to do so in terms of an order dated ………………. in the South Gauteng High Court, Johannesburg, under case number …..  
4. the parties have agreed to be bound by the following provisions as if these provisions formed part of the existing antenuptial contract”.