Prospective spouses in South Africa in preparation for their big day usually forget that the number 1 to do on their wedding to-do list is to decide upon the matrimonial property regime (a type of marriage) to regulate their marriage. In most instances, it will result in a couple being married in community of property. However, if spouses elect to exclude universal community of property they must enter into an Ante-Nuptial Contract (ANC) BEFORE they get married.
My focus here will be on the process involved and requirements for an ANC to be validly registered by the Registrar of Deeds. In terms of Section 86 of Deeds Registries Act No. 47 of 1937 an ANC should be registered in the deeds office within 3 months of execution. It is to be prepared by a notary, and if it is not so registered within 3 months a court can be approached for extension of such time.
If an ANC is executed but not registered it is valid inter partes but it cannot be enforced against third parties. For an ANC to be effective a valid marriage should be concluded thereafter.
There are however instances where the Registrar of Deeds is allowed to register postnuptial contracts. See section 21 of the Matrimonial Property Act and Section 88 of Deeds Registries Act if a court order is obtained to that effect. Prospective spouses should check with deeds registries to see if their ANC is registered before entering into marriage.
Article courtesy of Lexis Digest