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Formalities of an Antenuptial Contract

In South Africa an Antenuptial Contract (ANC) ought to adhere to certain prescribed formalities to be recognised as legally valid. This is very important in many respects, as spouses may later find out after so many years that the Antenuptial contract they thought was valid was, all along, not valid. In this article we shall share some insights into the formalities of Antenuptial contracts.

An Antenuptial Contract is Executed Before entering into the Marriage

This is the point of departure that may change everything, parties are advised to be wary of this principle. Antenuptal contracts are executed before a registered and practicing Notary before the marriage is entered into, otherwise the marriage will be regarded as marriage in community of property. Spouses are not without recourse however, as section 21 of the Matrimonial Property Act 88 of 1984 (MPA) provides for the option to alter the marital property system from in community of property to out of community of property. 

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What are the Formalities for an ANC?

It must be in writing

Section 87 of the Deeds Registries Act 47 of 1937 requires that Antenuptial Contracts must be registered with the Deeds Registry Office. It therefore goes without saying that Antenuptial contracts must be in writing. Of course verbal contracts are valid in South Africa but where, in this case, the contract has to be registered then it must be in writing.

The provisions of the Antenuptial contract must not be contrary to public policy

This provision emanates from the common law general requirement that for any contract to be legally recognised, it must not be against public policy. Since an Antenuptial contract is also a contract, it ought to, as a starting point, comply with the general requirements of contracts. The object of and the provisions of a contract must not be contrary to public policy otherwise they run the risk of not being legally recognised.

It must be registered with the Deeds Registries Office

Antenuptial contracts must be registered with the Deeds Registries office within three months after they have been executed. Section 87 of the Deeds Registries Act 47 of 1937 requires that Antenuptial contracts be registered as alluded to above. If an Antenuptial contract is not registered at all or outside the legally permissible time frame, it will affect its validity.  

Only a Notary may assist in executing an ANC

It is not every attorney who is eligible to assist parties to execute Antenuptial contracts, only a practicing Notary is eligible to do so. Therefore, in the event that it is found that the person who assisted the parties is not one, then the Antenuptial contract is not valid.

In conclusion, it is important to note the judgment in the case of B v B (952/12) [2014] ZASCA 14, where the court reiterated the need for parties to fully disclose the values of their estates where entering into an Antenuptial agreement. This is important in that in the event that either of the spouses passes away or the marriage dissolves, then the administration of those separate estates will be made much easier and clearer.

Van Deventer & Van Deventer Incorporated  - Marriage Law Attorneys South Africa

We assist with the execution of Antenuptial contracts as well as family law litigation. Our interactive website outlines other services that we offer professionally.

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