Spouses sometimes realize after they are married that they chose the wrong property regime, or that their Antenuptial Contract (ANC) doesn't reflect what they wanted. Case law is exceptionally clear: changing the rules after the fact is neither simple nor automatic.
The Rule: Judicial Oversight is Mandatory
As confirmed in the Constitutional Court case VVC v JRM [2026] ZACC 2, spouses cannot privately agree to alter their matrimonial property system after the marriage has commenced[cite: 5]. Any postnuptial change requires a formal application to the High Court under Section 21 of the Matrimonial Property Act[cite: 5]. The court must be satisfied that there are sound reasons, that creditors have been notified, and that no one will be prejudiced[cite: 5].
What if the ANC contains a "Mistake"? (PV v EV)
What happens if you sign an ANC, but later claim you misunderstood it or that it didn't reflect your intentions? Can you ask the court to "rectify" the contract?
In PV v EV [2019] ZASCA 76, a wife signed an ANC excluding the accrual system. During divorce, she asked the court to "rectify" the ANC to include accrual, claiming the husband had promised it was a mistake that he would fix later[cite: 7].
The Supreme Court of Appeal dismissed her claim. The Court held that rectification is only competent if there was a common, continuing intention between BOTH parties that was incorrectly recorded in the document[cite: 7]. Because the husband explicitly wanted a marriage *without* accrual and the wife wanted it *with* accrual, there was no consensus[cite: 7]. Without mutual consensus, a court cannot rewrite the contract; the clear, unambiguous terms of the registered ANC must stand[cite: 7].
⚖️ The Legal Takeaways
- You cannot change your regime privately after the marriage begins[cite: 5].
- You cannot "rectify" an ANC just because you misunderstood the law or because you and your spouse disagreed[cite: 7].
What This Means for Couples
- Read before you sign: Are you relying on a vague promise to "fix it later"?
- Costly corrections: Are you assuming that changing to an ANC after a customary marriage is a simple paperwork exercise? It requires a High Court application.
⚠️ What This Does Not Mean
This does not mean a genuine mutual error cannot be fixed. If both spouses explicitly agreed to include accrual, but the notary accidentally drafted an exclusion clause, the court can rectify that mutual error[cite: 7]. However, courts will not create a contract the parties never mutually agreed upon[cite: 7].
Understand Before You Say "I Do"
An ANC is a profound legal commitment. Understand your choices thoroughly before registration, because reversing them later is legally complex and financially costly.