Antenuptial Contract - Should You or Should You Not? | Legal Articles


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Antenuptial Contract - Should You or Should You Not?

We receive several inquiries from our clients and the public from time to time, with regards to the difference between a Prenuptial and an Antenuptial agreement. The short answer is, they are the same.

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Antenuptial Contract South Africa

Both Prenuptial and Antenuptial agreements govern the marital property regime prevailing between spouses in a valid marriage. While in South Africa the most commonly used term is Antenuptial Contract/Agreement, the term Prenuptial Contract is most often used in the United States and other jurisdictions.

As alluded to above the primary purpose of antenuptial contracts are to bring certainty with regards to the matrimonial property system that spouses in a valid marriage prefer.

Besides certainty antenuptial contracts bring legal effect to matrimonial property regimes and this is crucial with regards to entering contracts, as well as in the event of divorce, maintenance and devolution of deceased estates.

In many instances parties in romantic relationships make decisions which have far reaching implications pertaining to their individual estates when a marriage is eventually concluded. It is imperative that one seeks expert legal advice before entering a marriage so as to understand and make informed choices with regards to the dynamics of matrimonial property systems in South Africa.

Validity of an Antenuptial Contract

In terms of Section 87 of the Deeds Registries Act 47 of 1937, an antenuptial contract must be executed before a Notary and registered in a deeds registry within three months, or any such extension a competent Court may condone.

This specifically requires that a Notary be present when it is executed and not any legal practitioner. Antenuptial contracts entered outside of South Africa must be executed according to the law prevailing in that jurisdiction.

For them to be valid in South Africa they must be registered with the deeds registry within six months of execution in such foreign jurisdiction or within such period a competent Court may condone.

A distinction must also be made between formal and informal antenuptial contracts. A formal antenuptial contract is one which has been executed and registered in accordance with Section 87 of the Deeds Registries Act 47 of 1937, such formal antenuptial contract is effective against third parties.

An informal antenuptial contract can be verbal, for example, and is one which has been executed outside the formalities of the Act. It is effective inter partes (between the intended parties) but not against third parties.

Divorce with Antenuptial Contact

A verbal antenuptial contract was upheld by the Court in the case of Odendaal v Odendaal 2002 (1) SA 763 (W) to the effect that it was binding between the intended spouses who were going through divorce.

An unregistered antenuptial contract is valid between the intended spouses, and this was held by the Court in the case of Honey v Honey 1992 (3) SA 609 (W).

One of the most basic tenets of the law of contracts is that the contents thereof must be lawful, and antenuptial contracts are not immune to this requirement. Some of the most important provisions of antenuptial contracts include the following:

  1. The identification of the preferred matrimonial property regime e.g. either with or without the accrual system
  2. Marriage settlements e.g. donations between spouses
  3. Succession i.e. how their separate estates will devolve after the respective spouses pass on
  4. Right of recourse with regards to household necessities e.g. Section 23 (5) of the Matrimonial Property Act 88 of 1984 provides that the spouses are jointly and severally liable for debts of household necessities regardless of who incurred the debt between the spouses who are married out of community of property.

The adjustment of the matrimonial property regime post-marriage is possible, although it comes at a higher cost as it is fraught with added essential requirements.

Van Deventer and Van Deventer Incorporated – Family Law Attorneys South Africa

It is crucial that parties discuss and agree on a preferred matrimonial property regime before the conclusion of the marriage as it comes with serious implications regarding the estates of the intended parties.

Should the parties opt to conclude a valid marriage out of community of property, we stand ready to assist the parties through the process of executing a validly registered antenuptial contract, effective between themselves and against third parties. Such certainty and effect of law ensures that spouses enjoy peace of mind knowing their interests are well secured.

Contact us for expert legal advice and assistance with antenuptial contracts in South Africa.


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