In some property transfers, STBB’s conveyancing attorneys discover that antenuptial contracts prepared by other firms were never registered timeously – or at all. Unfortunately, this means that the transacting couple is married in community of property under South African law. When this happens, our family law attorneys helpfully step in to resolve the issue and protect our clients’ interests.
Antenuptial contracts and the law
According to section 87(1) of the Deeds Registries Act, an antenuptial contract (‘ANC’) must comply with the following legal requirements:
- It must be attested by a qualified notary public; and
- It must be registered in the Deeds Office within three months after the date of its execution.
Under South African law, spouses-to-be who do not execute an ANC before marriage are automatically married in community of property. Accordingly, all their assets and liabilities, including debts, are pooled under a single, joint estate. In instances where a couple has concluded an ANC but later discover that it was not registered in the Deeds Office within the prescribed three-month period, their matrimonial property regime will be deemed to be in community of property.
Understandably, this can be devastating for couples who intended to get married out of community of property, with or without accrual. However, a solution is available: Spouses may apply to court to authorise the registration of a postnuptial contract – a process STBB’s family law attorneys regularly handle.
Obtaining a court order for a postnuptial contract
If a couple who executed an ANC agreed upon the terms of their intended matrimonial property system prior to marriage, legal recourse is available. Under section 88 of the Deeds Registries Act, a couple whose ANC was not timeously registered may jointly apply to the High Court for an order authorising the execution and registration of a postnuptial contract.
This application, which is made in terms of section 21(1) of the Matrimonial Property Act, read with section 88 of the Deeds Registries Act, must comply with certain procedural requirements, namely:
- The parties must give the Registrar of Deeds at least seven days’ notice to enable them to object to the application or make recommendations; and
- The parties must publish a notice of their intended matrimonial property change in two local newspapers and the Government Gazette, and deliver it to all known creditors. This ensures creditors are informed and not prejudiced, with proof of publication and delivery submitted in support of the court application.
If the court is satisfied that the application reflects the parties’ true intentions and no prejudice will result, it will grant an order allowing the couple to execute and register a postnuptial contract.
Crucially, the practical effect of the order is that the postnuptial contract will operate retrospectively. In other words, it will be effective from the date of the marriage – despite being executed and registered in the Deeds Office after the marriage was concluded.
The postnuptial contract must be executed in the presence of a notary public, who will lodge the contract, along with the court order at the Deeds Office for registration within the time period specified in the court order.
Speak to an attorney today
As frustrating as it may be to discover that your antenuptial contract was not duly registered at the Deeds Office, help is available. Our experienced family law attorneys are here to guide you through every step of the process to give effect to your intended matrimonial regime. Contact our team of specialist attorneys at familylaw@stbb.co.za/dev2 for expert legal advice and peace of mind.
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