Antenuptial Contracts

If you’re getting married and your antenuptial contract (ANC) isn’t notarised or registered with the deeds office, what happens – particularly if you get divorced?

When you enter into an ANC, the Deeds Registries Act of 1937 sets out several formalities. The first is that your ANC is notarised, and the second is that it’s registered in a deeds registry within three months. If you don’t follow these steps, South African legislation says that the ANC will not be valid against any person who was not a party to the agreement. But what does this mean?

Let’s say, for example, that John and Sarah get married and their antenuptial contract is not registered at the deeds office. This means that essentially, John and Sarah would be married as if no contract had been entered into – i.e. they’d be married in community of property. For more on this, click here to read my previous blog post on being married in community of property.

The consequences of this could be dire if, for example, John got into financial difficulties and was sequestrated. In this case, Sarah’s entire estate would be thrown into the pot with John’s to satisfy creditors. This wouldn’t happen if the couple were married in terms of the accrual system. If this was the case, Sarah’s estate would be safe from any attacks by creditors.

There are a number of cases which have dealt with this question. In all of them, the court has held that while the antepnuptial contract is of no force and effect against any person who is not mentioned in the agreement, it is valid and effective between the parties who are explicitly mentioned. In our example above, this would mean Sarah and John. So, if they were to divorce, the accrual system would govern the distribution of assets at the dissolution of the marriage.

If John and Sarah realised after they were married that their antenuptial contract had not been registered, they could correct this. Section 88 of the Deeds Registries Act provides that the court may authorise post-nuptial execution of a notarial contract. The court may order the registration of the contract within a specified period if the terms were agreed upon between the intended spouses before the marriage.

The requirements for post-nuptial execution of an antenuptial contract usually include the following:

• John and Sarah will have to sign an affidavit which sets out a satisfactory and acceptable reason why a formal contract was not concluded before the marriage
• There must have been a clear agreement between the parties to marry out of community of property (with or without the accrual system)
• John and Sarah must have acted immediately to rectify the matter as soon as they became aware of the non-registration

A copy of the proposed contract must be presented to the court and the rights of John and Sarah’s creditors must be protected. Although it’s possible to have the court authorise your antenuptial contract after you’re married, this can be time consuming and expensive. It’s a much better idea to make sure that you register your antenuptial contract with the deeds office within the three month period after the date of your marriage.

By Gillian Lowndes, attorney specialising in family law