Antenuptial Contracts, a South African perspective.
By S Mnisi 010 592 2321
An Antenuptial Contract is a contract entered into by two intending spouses before getting married in which they stipulate the terms and conditions for the exclusion of community of property between them.
This contract is also known as a Prenuptial Contract or Prenuptial Agreement, it means that each spouse has complete freedom to deal with that property as he or she wishes. In the event that one spouse is declared insolvent, the other’s property is protected from the insolvent spouse’s creditors, subject to Section 21 of the Insolvency Act. 1
Registration of an Antenuptial contract Sections 86 of the Deeds Registries Act 47 of 1937 provides that an Antenuptial contract executed before and not registered at the commencement of this Act or executed after the commencement of this Act, shall be registered in the manner and within the time mentioned in Section 87, and unless so registered shall be of no force or effect as against any person who is not a party thereto. 2
Further, section 87(1) of the Deeds Registries Act 47 of 1937, states that, an Antenuptial Contract executed in the Republic shall be attested by a notary and shall be registered in a Deeds Registry within three months after the date of its execution or within such extended period as the Court may on application allow.3
By looking at the provisions of section 86 of the Deeds Registries Act 47 of 1937 there is a clear indication that an antenuptial contract which has not been registered in accordance with section 87 has no force or effect against any person who is not a party thereto. However, the Antenuptial Contract will be valid and binding between the parties thereto, due to the fact that the unregistered contract clearly reflected the common intention of the parties at the time the contract was entered into. 4
It is a legal requirement for an Antenuptial Contract to be registered in the Deeds Office within 3 months of execution thereof by the contracting parties as stipulated in sections 86 and 87(1) of Act to be valid against 3rd parties, the public at large. Therefore, once you have signed the Antenuptial Contract with your attorney, who also has to be a Notary, the attorney must submit this document to the Deeds Office for examination and registration. 5
In the case of S v S [2015] 3 All SA 85 (KZD) the parties got divorced 20 years after getting married. 6
At the time of divorce, it was discovered that the Antenuptial Contract that they entered into before their wedding, was never registered in the Deeds Office. Even though the contract was not valid against third parties, the Judge ruled that between the parties themselves, the contract was valid and binding. 7
Furthermore, the court held that, as per the intention of the parties, they were regarded as having been married out of community of property, with no community of profit or loss, but subject to the accrual system. 8
The accrual system was applied to their respective estates as at date of litis contestatio (date when the divorce action was instituted) to prevent one party from frustrating the claim of the other by squandering the assets in his or her estate, or by delaying the proceedings to increase his or her claim. 9
In ex parte Spinazze and Another NO 1985(3) SA 650(A) the court held that, “the effect of registration is to give notice to the world of the existence of the Antenuptial Contract and thereby to bind persons who are not parties thereto, including creditors. 10
Footnotes:
- Mckeown M “What is an Antenuptial Contract (Prenuptial Agreement)?” 2014.
- Section 86 of the Deeds Registries Act 47 of 1937. Section 87(1) of the Deeds Registries Act 47 of 1937.
- Section 87(1) of the Deeds Registries Act 47 of 1937.
- Mckeown M “What is an Antenuptial Contract (Prenuptial Agreement)?” 2014.
- Fick C “Antenuptial Contracts: What Happens if a Contract is not Registered?” 2015.
- S v S [2015] 3 All SA 85 (KZD).
- S v S [2015] 3 All SA 85 (KZD).
- S v S [2015] 3 All SA 85 (KZD).
- Fick C .“Antenuptial Contracts: What Happens if a Contract is not Registered?” 2015.
- Spinazze and Another NO 1985(3) SA 650(A) at 658
Disclaimer: this article does not constitute, nor should it be construed as, the giving of legal advice, and it is recommended that you approach one of our attorneys to obtain separate and proper advice : 010 592 2321