Antenuptial Contracts – how does accrual work and can a marital property regime be changed after marriage?

Namibian law does not have an equivalent law allowing for a redistribution order similar in nature to the accrual system provided for by section 3 of the Matrimonial Property Act (SA). However, the parties can include any provision in the contract – as long as it is not contra bones mores or in conflict with the essential consequences of a marriage. Causes of this nature will be null and void.

It is almost impossible to make a change after the marriage, unless there has been some mistake.  So it is important for a couple to consider their decision on property sharing carefully before they get married. However, in terms of section 88 of the Deeds Registries Act, a post-nuptial ANC may be entered into and registered (after solemnisation of the marriage). In this instance the parties agreed in writing or orally, expressly or tacitly, to marry under antenuptial conditions, but did not execute a notarial antenuptial contract before the marriage and have it registered. They can approach the High Court for permission to register the contract post-nuptial upon specific conditions.

Note: To be enforceable the ANC must be executed before a Notary prior to the marriage and registered in the Deeds Office within 3 months from the date of signing. Not doing so will result in the default situation of In Community of Property.