Revoking a prenup
The general rule for the revocation or alteration of antenuptial contracts is that this is limited to those cases where the marriage has been dissolved, or where the terms appearing in the prenup do not give effect to the true agreement between the parties. The parties must execute a formal revocation document and support it with adequate consideration.
Amending a prenup
Once an antenuptial contract has been registered in the Deeds Office and confirmed by your marriage, it cannot be changed inter partes (between the parties) informally. The contract can only be amended if both spouses bring an application in the High Court in terms of section 21 of the Matrimonial Property Act of 1984.
The court will look at the validity of the couple’s reasons for the request and then decide whether to grant an order for the amendment of the contract to reflect the true intentions of the parties. Both spouses must consent to the amendment, and it is vital that the rights of creditors and third parties be protected. Furthermore, both spouses must consent to the alteration of the prenup, neither of the spouses may be insolvent, and neither spouse may have any judgements against them.
A High Court application will be expensive, and the parties must ensure that they understand the strict requirements to adhere to for their amendment application to be successful.
Couples can also apply for an amendment of their prenup if there is simply an error in it that needs rectification. The couple must apply to the Registrar of Deeds in terms of Section 4(1)(b) of the Deeds Registries Act. There are only certain circumstances in which this route can be taken, such as an error in the name of a party, an error in the date of birth of a party, an error in the ID number of a party, or an error in the number of the life insurance policy to be ceded.
A couple cannot apply to have an antenuptial contract amended to delete or add any other conditions to the contract. Only basic errors that would not affect the contents or intention of the prenup can be amended in this way.
Given the above information, it’s clear that spouses must very carefully ensure that their contract is in line with their expectations, and that they understand the contents and the implementation thereof in practice, before applying for the contract. Revocation or amendment of prenups are both costly applications and it’s best to avoid this, if possible.