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 (type of marriage) to regulate their marriage. In most instances it will result in couple being married in community of property. However if spouses elect to exclude universal community of property they must enter into an Antenuptial Contract (ANC) BEFORE they get married.
My focus here will be on the 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 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 Matrimonial Property Act and Section 88 of Deeds Registries Act if a court order is obtained to that effect. It is advisable that prospective spouses should check with deeds registries to see if their ANC is actually registered before entering into marriage.
Adv Audrey Gwangwa