An Antenuptial Contract That Never Was – And Why It Wasn't | Legal Articles


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An Antenuptial Contract That Never Was – And Why It Wasn't

After the reading of a Will, it's often not surprising when there are often issues that arise. Not only because the Will is not clear, but family members often feel that they were not looked after and one got more than the other etc.

Such disputes sometimes end up in Court, where members challenge the Will or its validity at all costs, hoping that should the estate be administered and distributed according to the rules of Intestate Succession, they stand to gain more.

In the end, the Courts take the principle of freedom of testation in serious light, as was held in the cases of Spies v Smith 1957 (1) SA 539 (A) and Katz and Another v Katz and Others 2004 (4) All SA 545 (C) where freedom to nominate beneficiaries was protected by the Courts.

Unfortunately, it is not only Wills that are challenged in the same pursuit, contracts are also challenged.

antenuptial contract attorneys Johannesburg

Antenuptial Contract Attorneys Johannesburg

An Antenuptial Contract (ANC) is one particular contract that runs the risk of being challenged.

The ANC is an agreement between spouses who opt to marry out of community of property.

ANCs often do not favour the interests of each spouse's creditors in the event that such spouse fails to meet their debt obligations. On the other hand, the reality of life is that spouses who once loved each other may drift apart owing to various reasons from infidelity, changed circumstances, abuse and loss of affection.

Executing an Antenuptial Contract correctly

These scenarios often result in fierce divorce battles as spouses try to outdo each other. During the divorce battle it comes as a bonus when the economically disadvantaged spouse finds out that all along they had technically been married in community of property as the ANC was not executed properly. It therefore is important that spouses rest assured that their ANC is compliant with the law, so as not to encounter unexpected complications upon dissolution of the marriage or death of one of the spouses.

In the event that an ANC is found not to be compliant with the legal rules attendant thereto, there runs a risk that the marriage will automatically be declared to be in community of property. In the case of B v B [2014] ZASCA 14 (24 March 2014) the Court held that the ANC was invalid because no values had been assigned to the assets, which also were not properly identified. This situation favours the spouse that has a lesser estate as compared to the other, and such spouse will likely be the one to plead this fact to sway the divorce in their favour.

An ANC that does not comply with legislative requirements is not recognised, not binding and of no force or effect. Where it is found that the ANC subsisting between the spouses in invalid, the marriage consequences will be as those of marriage in community of property. It then becomes important that spouses ensure that the ANC they conclude complies with prevailing legislative provisions so as not to run that risk.

We advise that while it is indispensable for spouses to execute an Antenuptial Contract without Notaries and Attorneys, the following can be of assistance to spouses so as to keep watch and ensure mistakes are not made.

An Antenuptial Contract must:

  • Be registered with the Deeds Office within 3 months from date of execution;
  • Must be executed (signed) before a Notary who must also authenticate to such effect;
  • Only a registered Notary may authenticate the signatures;
  • Be executed before the marriage and in front of two witnesses;
  • If executed after the conclusion of the marriage, then the High Court must give authorisation after determination of a Court application as per Section 21 of the Matrimonial Property Act of 1984.

Van Deventers & Van Deventers Inc. - Your Attorneys in Johannesburg & Cape Town

It will be shattering news for spouses to know that all along their ANC never complied with the law, and in fact they have been married in community of property which they never intended when the marriage was concluded.

Our Family Law Attorneys and Notaries are endowed with years of experience and knowledge to assist with the execution of Antenuptial Contracts before the marriage is concluded. Where spouses wish to alter their matrimonial property system, we assist with the High Court application as per Section 21 of the Matrimonial Property Act of 1984. Our approach is professional and committed.

Contact us for comprehensive assistance.

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