Registered Antenuptial Contracts vs Agreements Between Spouses

The term ‘antenuptial contract’ can refer to either an informal contract or a contract complying with the formalities required by s 87 of the Deeds Registries Act 47 of 1937.  The public is not always aware of the fact that a verbal or written contract can be binding inter partes (between the parties) because an antenuptial contract (“ANC”) is usually understood to mean a contract registered at the deeds office which regulates the matrimonial property between the parties and against third parties. This article briefly explores the above two concepts and case law dealing with the issues that arise when parties have both entered into a registered contract and a verbal or written agreement before or after marriage.

In terms of the Deeds Registries Act 47 of 1937 (“the Act”), an antenuptial contract executed in South Africa shall be attested by a notary and shall be registered in the deeds registry within three months after the date of its execution or within such extended period as the court may on application allow.

In the case of Ex Parte Minister of Native Affairs in re Molefe v Molefe 1946 AD 315, it was held that under common law, parties may mutually regulate their proprietary rights post-marriage through agreement, which holds binding force between them but does not extend to third parties.

In B v B 820/2021 SCA the matter was heard on appeal from the Gauteng High Court. The Supreme Court of Appeal had to adjudicate on the validity of a separate agreement entered into by the parties after concluding a registered ANC, which excluded community of property and the accrual. The defendant in the main action claimed the enforcement of the separate agreement in her counterclaim. The separate agreement, among other things, included the payment of life-long maintenance to the wife on the death of the husband or by divorce. The court found that the separate agreement was indeed enforceable. The court’s reasoning in the above matter was that the ANC determines the matrimonial property regime and its effect on third parties, and the separate agreement does not attempt to change the marital regime. The agreement is valid and enforceable, and the court should uphold the principle of pacta sunt servanda (agreements must be kept). The agreement does not restrict the court’s discretion under the Divorce Act in terms of s 7(1) and s 7(2). The ANC and the separate agreement can coexist as long as they don’t contradict each other.

When parties intend to change the matrimonial property system, an application should be made by both spouses in terms of Section 21 (1) of the Matrimonial Property Act and such change can only be effected by leave of the court.

The court will grant leave if there are sound reasons for the proposed change, sufficient notice was given to any creditors of the parties, and no other person will be prejudiced by the proposed change.

In Odendaal v Odendaal 2002 (1) SA 763 (W) the Court accepted the husband’s evidence that there was a verbal antenuptial agreement in terms of which they were married out of community of property, with the exclusion of the accrual system.

Section 88 of the Deeds Registries Act further deals with postnuptial executions of antenuptial agreements and reads that a court may, subject to such conditions as it may deem desirable, authorise the execution of the notarial contract entered into after marriage but if the terms thereof were agreed upon between the intended spouses before the marriage was concluded.

For an antenuptial contract to be valid and enforceable, it does not need to be registered. The effect of registering an antenuptial contract is that it gives notice to third parties on how matrimonial property must be dealt with and the necessary formalities that need to be complied with for obligations to be effective or valid against third parties. Therefore, contracts that have been entered into between spouses before marriage, whether it is verbal or written, will be valid between the spouses and will be enforceable.

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