An ante-nuptial contract (Also called a prenuptial contract) is concluded to ensure the security of the assets that the couple brings to the marriage.
That being said, ensuring that it is executed correctly is something that all individuals need to be made aware of.
Types of Marriages in South Africa
As you may be aware, South Africa has three marital regimes that one can enter into:
1. Marriage in community of property;
2. Marriage out of community of property with the accrual; and
3. Marriage out of community of property without the accrual.
Marrying in community of property
1. When marrying in community of property, no antenuptial contract is signed before the wedding and all assets and debts coming into the marriage are shared equally by the spouses. That includes upon dissolution of the marriage. Everything is 50/50 and you need the other spouse to consent and sign all documents with you.
Marrying out of community of property
2. When marrying out of community of property with the accrual system, one concludes a contract stating that whatever assets are accumulated during the duration of the marriage will be shared amongst the parties upon dissolution (should that happen). Both spouses have their separate estates during the marriage and do not share in each other’s profits or losses. Simply put the spouses’ joint wealth will have increased during the marriage and the spouse with the smaller accrual has a claim against the spouse with the greater accrual for half of the difference between the amounts upon dissolution.
Marrying out of community of property without the accrual system
3. When marrying out of community of property without the accrual system, one concludes a contract stating that each party entering into the marriage will retain his/her estate. There is a complete separation of the assets and liabilities of the parties brought into the marriage and accumulated during the marriage. This exclusion must be specifically stated in the agreement for it to be enforced.
The Postnuptial Nightmare
Should one enter into an ante-nuptial contract and not have this executed correctly, one could find oneself married in community of property without knowing about it. What does this mean exactly?
Jack and Jill are in love and decide to get married. After discussing things, they have agreed to enter into an antenuptial contract to ensure financial security.
Jack and Jill decide to approach an attorney friend to draft the necessary paper work to ensure that their wishes are met.
Jack and Jill then decide to have a Power of Attorney drawn up, as they don’t want to deal with having to sign the antenuptial contract. The attorney will then do this for them on their behalf.
They have a beautiful ceremony on the 5 of September 2017 and think that they are married out of community of property with accrual.
A few months later Jack wants to buy a home in his name and runs into some trouble as the bond is denied due to the fact that he is actually married in community of property.
Upon investigation they find that the antenuptial contract was signed in front of a Notary public, but only on the 12th of September 2017. (Their attorney friend got his dates mixed up.)
Big Oops Antenuptial Contract
In terms of section 87 of the Deeds Registry Act this contract must be signed in front of a Notary Public and be duly registered and executed before the wedding takes place for it to be valid.
If this does not occur, you will be married in community of property regardless of what that contract states.
STEPS TO CORRECTING THE PROBLEM
The only way one can correct this is to make an Application to the said High Court who has jurisdiction and request that the martial regime be changed. With that said, it is a messy job and highly stressful on the married couple and attorney that gets appointed to correct the matter.
A letter will then need to be sent to the Deeds Office to request that they draw up a report before you can move forward. A nominal fee of R 500.00 per report must be paid. Once that is done, your appointed attorney will draft a Founding Affidavit setting out what happened and why it happened. The mistake is then pointed out and how the mistake occurred.
WHAT IS NEEDED FROM THE CLIENT
What the attorney will need is a copy of the said antenuptial contract, power of attorney, current bank statements, mortgage bond statements, car finance statements etc. as this will paint the necessary picture for the Judge to grant the changing of the martial regime.
A Confirmatory Affidavit will then be drafted on behalf of the other spouse confirming the contents of the Founding Affidavit. Confirmatory Affidavits will also need to be drafted for the Notary Public who signed the antenuptial contract, as well as for the attorney who had the contract signed and registered after the said marriage.
Note that a Postnuptial Agreement needs to be drawn up and attached to the Founding Affidavit, but this then also needs to be signed by the parties in front of a Notary Public, as this will need to be registered with the Deeds Office. It is suggested that the couple does this themselves to ensure that it is done correctly and timeously.
One just needs to be aware of the fact that the contents in this Postnuptial Agreement will contain the same information that was in your original antenuptial contract. The reason for this is that your appointed attorney is then attempting to “make it look like the registration of the Postnuptial Agreement went smoothly the first time and that there were never any mishaps.” So, wives and husbands please don’t worry about that.
Once all the necessary documentation has been drafted, Notice needs to be advertised in two newspapers. One in a local newspaper and the other in the National newspaper of said province. Notice will also need to be placed in the Government Gazette. All this has to be done three weeks before the matter is heard in court.
Simultaneously one will have to send notice to each spouses’ creditor three weeks before it’s heard in court. The contents of these letters should include when the matter will be heard in court and why. The case number should be clearly indicated in said letter. This is a formality that must be adhered to as all the creditors must have an opportunity to object to the change, should they wish to.
The last thing that then needs to be done is to have the Judge grant the order. Once an Advocate brings the matter in open court to the Judge and it gets granted, the said granted court Order allowing the marriage of in community of property to be changed to either out of community of property with/without the accrual system needs then to be sent to the Deeds Office so that the Postnuptial Agreement gets registered.