Antenuptial Contracts 101

An antenuptial contract, also referred to as a prenuptial contract, arranges the matrimonial property system of spouses. It regulates how property will be owned in the marriage because spouses can decide to own their estates separately or jointly. The antenuptial contract can however also be used for many different purposes and this include the provision of donations or even future gifts between spouses, estate planning, the creation of trusts or joint wills between the spouses and many more.

Spouses are free to include any provision in the antenuptial contract, as long as those provisions are not against morality, public policy or prohibited by law. The provisions in an antenuptial contract are aimed to exclude the community of property but it should not be in conflict with the essential consequences of marriage. It should not be planned and constructed in a manner that will lead to separation or divorce or aim to take over the powers of the court. A clause for example that permits adultery, will therefore not be permitted in an antenuptial contract. Provisions in favour of children to be borne from the marriage, are however commonly found.

Only notaries (specially qualified attorneys who are admitted as notaries by the High Court of South Africa) are allowed to execute and register antenuptial contracts and both intended spouses must sign the antenuptial contract before a notary. The spouses can however also authorise another person to execute the antenuptial contract on their behalf, in the presence of the notary.

Antenuptial contracts executed in South Africa must be attested by a notary and must be registered in a deeds registry within 3 months after date of its execution (or within such extended period as the court may on application allow). Antenuptial contracts executed outside South Africa must be attested by a notary (or otherwise be entered into in accordance with the law of the place of its execution) and must be registered in a deeds registry within 6 months after the date of its execution.

Antenuptial contracts that are not registered in a deeds registry within the time as set out above, will result in the parties being regarded as being married in community of property by third parties and the provisions of the antenuptial contract will only be valid between the spouses.

Prospective spouses to a customary marriage, should also beware to execute their antenuptial contract before the marriage is negotiated, entered into and celebrated in terms of the customary law.

It is recommended that prospective spouses consult with the Notaries in Cape Town and Johannesburg of Julies Attorneys Inc. on an antenuptial contract that will suit their specific personal circumstances.