HOW IMPORTANT IS IT TO SIGN THE ANTE-NUPTIAL CONTRACT BEFORE THE DATE OF MARRIAGE IN TERMS OF FORMALITIES?

An Ante-Nuptial Contract is an agreement signed before the marriage by parties who intend to marry each other out of community of property. The default marital regime, should the parties not enter into an Ante-Nuptial Contract, is then a marriage of in community of property.

There are, however, important factors to note to constitute a valid Ante-Nuptial Contract once registered in the deeds office which will be explained in short, below:

You need to sign the Ante-Nuptial Contract in the presence of a duly admitted Notary along with two competent witnesses and this needs to be before the date of marriage. The parties cannot enter into an Ante-Nuptial Contract after the date of marriage.

It is also important to note that, should the parties grant a power of attorney to someone else to appear in front of the Notary to sign the Ante-Nuptial Contract on their behalf, the person with the power of attorney also needs to ensure they sign the Ante-Nuptial Contract before the date of marriage and not after. We have previously come across a matter where the parties gave power of attorney to someone, let’s call him Peter. Peter was granted a power of attorney on 5 May 2022 by the parties intending to get married. The date of the marriage was 14 May 2022. Peter, however, only appeared in front of the Notary to sign the Ante-Nuptial Contract on 20 May 2022, which is after the date of marriage. Due to this, the parties are now seen as married in community of property.

The date and place of execution of the Ante-Nuptial Contract need to be specifically mentioned. If the signing of the Ante-Nuptial Contract in front of the Notary is the same day as the marriage, the exact time of execution also needs to be stated to ensure it is signed before the marriage.

Once the Ante-Nuptial Contract has been signed, it needs to be registered in the deeds office within 3 months of the date of execution in order for it to be valid against third parties. The Ante-Nuptial Contract may be registered in any deeds registry, irrespective of where the contract was executed or where the parties reside, as it is effective in the whole of South Africa.

Should you have any questions on Ante-Nuptial Contracts, please book a consultation and we will happily assist.