An Antenuptial Contract is a contract that is concluded between two spouses who plan to get married. The conclusion of the contract determines the proprietary consequences of their marriage union.
Where the proprietary consequences of marriage are not excluded or altered through a Antenuptial Contract the marriage will automatically be one of In Community of Property. This is the case whether the couple is marrying under the prescripts of a civil marriage or a customary marriage. The failure to enter into an Antenuptial Contract prior to the conclusion of a marriage under any of these systems will result in the marriage being one of In Community of Property.
Why is it necessary to Register an Antenuptial Contract?
It is necessary to do so for the terms of the Antenuptial Contract to have full legal force as against third parties who are not the contracting parties i.e. Banks and other credit providers. The Antenuptial Contract must be registered in a deeds registry within the legally prescribed time (that is within 3 months from the date of signature of the Antenuptial Contract before an Attorney who has been admitted to practise as a Notary Public).
An Antenuptial Contract can only be valid if it is signed by the parties before the Notary Public prior to the conclusion of the marriage. That is prior to the parties’ exchanging vows, signing a marriage register or concluding customary law practises which signify the coming into being of their marriage. Such a contract, whether it is in writing or not, is always binding on the parties themselves after the marriage but it has no legal force or effect against any other person unless it has been registered in a deeds registry.
Notary before whom an Antenuptial Contract must be Signed
An Antenuptial Contract executed in the Republic of South Africa may be attested (that is signed) by a Notary Public practising as such in any Province. The Notary’s full names must be disclosed in the contract, but the place where such notary practices is not important.
An Antenuptial Contract that is executed outside the Republic of South Africa must be attested to by a Notary or otherwise be entered into in accordance with the law of the country where it was executed otherwise it will not be recognised as valid in South Africa.
Although it has become customary for the Antenuptial Contract to be signed before the same Notary Public by the parties on the same day there is no legal objection to each party signing before the Notary on different days. The date of the last signature will be deemed to be the date on which the contract was finally executed.
Time of Registration of the Antenuptial Contract
As intimated above an Antenuptial Contract executed in South Africa must be registered in a deeds registry within a period of 3 months from the date of the signature of the contract by the parties and execution thereof by the Notary Public. However, an Antenuptial Contract that is executed outside of South Africa must be registered in a deeds registry within a period of 6 months from the date when it was signed by the parties and executed by the Notary Public, or within such extended period as the court may on application allow.
Place of Registration of an Antenuptial Contract
An Antenuptial Contract may be registered in any deeds registry in South Africa regardless of where it was signed or where the parties reside. However, where the Antenuptial Contract creates or transfers real rights in land (for instance where a party donates, prior to the marriage, an immovable property to the other party) such contract must be registered in the deeds registry serving the areas within which the property is located.
Amendment of Antenuptial Contracts
Unfortunately, unlike most contracts an Antenuptial Contract once it has been concluded and registered as well as confirmed by marriage it cannot be changed. The only qualification to this is that the parties may apply to court to amend an Antenuptial Contract if the said contract does not reflect the true intentions of the parties.
Prior to the solemnisation of the marriage, but after the registration of the contract, parties to the contract may, without approaching the court for authorisation, exercise their right to amend such Antenuptial Contract by agreement. Such amending or cancellation agreement will have to be registered in the deeds registry prior to the conclusion of the marriage in order for it to be of force and effect against third parties.
Post Nuptial Contracts
A Post Nuptial Contracts is similar to an Antenuptial Contract. It is concluded by the parties after the solemnisation of the marriage and subsequently the granting of the court order to change the marriage from one of In Community of Property to one of Out of Community of Property.
Provision has been made for the changing of a marriage from one of In Community or Property to Out of Community of Property by virtue of Section 20 of the Matrimonial Property Act 88 of 1984. This provision allows parties to change their marital regime by making an application to the High Court for such change.
The process for the change of a marriage from In Community of Property to Out of Community of Property via the provisions of this Section is as follows:
Step 1: Consultation.
Step 2: Drafting of Application.
Step 3: Signature of Application.
Step 4: Issuing Application at Court.
Step 5: Posting Application to Creditors and briefing Advocate.
Step 6: First Court appearance for interim order.
Step 7: Advertising Interim Order in the Local Newspaper and Government Gazette.
Step 8: Service of Order on Registrar of Deeds to obtain Section 97 report.
Step 9: Appearing in Court for Final Order (at this point the marriage is officially changed, subject to registration of the Post Nuptial Contract).
Step 10: Signing of Post Nuptial Contract.
Step 11: Lodging of the Post Nuptial Contract at the Deeds Office for registration.
Step 12: Supplying a copy or the Original to the clients.
The above-mentioned process can take anywhere between 60-90 days to complete.
Lwazi Dekeda | Director | Attorney, Notary & Conveyancer