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. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Why a Notary? – Part 2
In Part 1 of this article, we looked at the roles and functions of a notary, especially their general duties. In this part, we will look at the work reserved for notaries and a notary’s role in the certification and authentication of documents. One will see the necessity and importance of using a notary. The Deeds Registries Act requires notarial attestation (official certification by a notary) for several types of documents to be registered in the Deeds Office. These include, but are not limited to: 1. Antenuptial contracts; 2. Notarial bonds; 3. Personal servitudes, for example, a usufruct; 4. Praedial servitudes, for example, a right of way; 5. Long-term leases, cessions and subleases as well as cancellation and releases thereof; 6. Cession of exclusive use areas (in terms of the Sectional Titles Act). Notarial functions and document certification The notary, in their capacity as a commissioner of oaths, can authenticate and certify affidavits signed in their presence. The notary can also certify documents as true copies, prepare powers of attorney for use in the Deeds Office, and the preparation of various other non-notarial documents in notarial form for example deeds of donation, trust deeds and wills. Authentication procedures and international requirements Authentication involves a notary confirming the identity of the person signing a document. For documents signed in South Africa to be used abroad, or those signed abroad for use in South Africa, there are specific procedures. Typically, a notary authenticates the signer’s signature. This notary’s signature is then verified by the High Court Registrar, and further by the Department of Justice Secretary. However, these steps can sometimes be bypassed, allowing the Department of Justice to directly authenticate the notary’s signature. Simplifying authentication through the Apostille Convention This authentication process is complex but necessary for legal acceptance of documents in other countries. However, if the foreign country is part of the Hague Convention, the process is simpler. The Apostille Convention, established on 5 October 1961, removes the need for multiple steps. In this case, only the High Court in South Africa needs to authenticate the notary’s signature using a specific template, known as “apostilling” the document. Rule 63 and authentication of foreign documents in South Africa Rule 63 of the High Court specifies how to authenticate documents signed outside South Africa for use within the country. A document from abroad is considered valid in South Africa if authenticated by one of the following: a) The head of the South African diplomatic or consular mission or their authorised delegate. b) A Consul General or the Consul General of the United Kingdom. c) Any authorised government authority in the foreign country responsible for document authentication. d) a notary public whose signature must be authenticated by any of the authorities mentioned in points (a), (b) or (c). e) A notary public in the United Kingdom of Great Britain and Northern Ireland, Rhodesia, Lesotho, Botswana, or Swaziland. Notarial seals and evidential significance The rules state that the person authenticating documents should use their official seal if they have one. If not, they must state this under their signature. In South Africa, notaries aren’t legally required to use a seal (which is typically a rubber or metal stamp with “notary” and the notary’s name on it) on the documents they attest. However, it’s common practice for notaries to use such seals. Notary authentication is highly regarded for proving the authenticity of the signers and the accuracy of the document’s information. Reference list: 1. Act 47/1937 2. Sec 87(1) 3. Sec 61(1) 4. Sec 65(1) 5. Sec 75(1) 6. Sec 77(1) 7. Act 95/1986 Sec 25(1) and Sec 27(1) 8. Van der Merwe FE Notarial Practice 1st Edition p 20 – p 21 9. Van der Merwe FE Notarial Practice 1st Edition p 10 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Is it possible to override a registered antenuptial contract with a postnuptial agreement?
Before the Matrimonial Property Act 88 of 1984 (MPA) was introduced, matrimonial property law in South Africa was governed by the immutability principle. This principle dictated that the property regime chosen by a couple at the time of their marriage could not be altered afterwards. The case of Honey v Honey in 1992 (93 SA 609 (W)) reinforced this, stating that under common law, spouses couldn’t modify their matrimonial property system through an agreement. Any contract attempting to change the prenuptial agreement was considered void and unenforceable. However, the introduction of the MPA softened this rigid stance by providing ways for couples to change their matrimonial property system after marriage. Matrimonial Property Act In terms of section 21(1) of the MPA, a husband and wife, whether married before or after the commencement of this Act may jointly apply to a court for leave to change the matrimonial property system including the matrimonial power, which applied to their marriage. The court has the authority to approve changes to a matrimonial property system if it is convinced that: there are sound reasons for the proposed change. sufficient notice of the proposed change has been given to all creditors of the spouses. the proposed change will prejudice no other person. Upon meeting these conditions, the court can order that the existing matrimonial property system no longer governs the marriage and can permit the spouses to execute a notarial contract that will define their matrimonial property system going forward, subject to any conditions the court deems appropriate.1 AM v HM 2020 (8) BCLR 903 (CC)2 The abovementioned case concerned the question of whether a contract concluded by married persons, which departs from the terms of their antenuptial contract, is valid and enforceable. The applicant (wife) and respondent (husband) were married in community of property with the exclusion of the accrual system. During their marriage, the applicant (the wife) drafted an agreement to revise specific terms of their antenuptial contract. This new agreement proposed that she would receive half of the respondent’s (husband’s) estate and that he would continue to provide for her maintenance. The husband signed this agreement on 10 November 2014, and following this, the couple continued to live together as husband and wife. On 30 November 2014, the respondent indicated that he intended to institute divorce proceedings and issued a divorce summons against the applicant. The applicant filed her counterclaim where she sought, amongst other things, a declaratory order that the agreement was valid and binding and that it was signed in settlement of all claims or disputes that might emanate from the divorce action. The Regional Court granted the divorce order and dismissed the counterclaim. It held that the agreement was not entered into in contemplation of a divorce and that it would be against the public policy to allow parties to opt out of their marital regime without the mechanism provided for in section 21(1) of MPA. High Court The applicant applied to High Court for leave to appeal. The appeal was upheld by the High Court which overturned the decision of the Regional Court. It held that the agreement was enforceable since it had been concluded in contemplation of a divorce with its purpose being to constitute a settlement agreement. Supreme Court of Appeal The respondent appealed to the Supreme Court of Appeal. This court noted that since the parties did not approach a court in terms of section 21(1) of the MPA to sanction the change, the central issue was whether the agreement was made in contemplation of a divorce. It held that the applicant failed to prove that the agreement was concluded in contemplation of a divorce. The Supreme Court of Appeal upheld the appeal and set aside the order of the High Court. Constitutional Court The applicant approached the Constitutional Court for leave to appeal. In a unanimous decision, the Constitutional Court held that while the matter engaged the court’s jurisdiction, it was not in the interest of justice to grant leave to appeal. This was because the applicant introduced several constitutional issues in terms of contractual freedom, dignity, and unfair discrimination. She also had a constitutional complaint in the interpretation of section 21(1) of MPA. The Court held that these issues had not been ventilated in the other courts and this would in effect render the Constitutional Court a court of first and last instance. Furthermore, it was held that the Supreme Court of Appeal did not prescribe a bar on all agreements between spouses married out of community of property. The finding only related to the agreement at hand. The appeal was dismissed. Given the previously discussed legal context, it’s a well-established principle that spouses cannot modify an antenuptial contract after marriage without first obtaining court approval as outlined in section 21(1) of the Matrimonial Property Act (MPA). However, this restriction doesn’t prevent spouses who are married out of community of property from entering into other types of agreements. Reference list: section 21(1) of the Matrimonial Property System 88 OF 1984 J Heaton: South African Family law (3rd ed) AM vs HM 2020 (8) BCLR 93 (CC) Honey v Honey 1992 93) SA 609 (W) While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Navigating antenuptial agreements in South Africa: Your questions answered
Preparing for marriage in South Africa involves several critical decisions, one of which is the antenuptial agreement (AN). This legal document is vital for dictating the management of assets and finances within a marriage. To help you understand and effectively navigate antenuptial agreements, we’ve compiled answers to some commonly asked questions. Frequently asked questions about antenuptial agreements What is an Antenuptial Agreement? An antenuptial agreement, commonly known as a prenup, is a legal contract established before marriage, outlining the management of assets and finances during and potentially after the marriage. What are the types of antenuptial agreements in South Africa? With accrual: Shares the growth of each spouse’s estate during the marriage, considering only assets acquired after marriage. Without accrual: Each party retains their individual assets and liabilities, both during and after the marriage, often chosen when substantial assets are involved before marriage. Why is full disclosure of assets important? Full transparency in disclosing all assets and liabilities is crucial for creating a fair and valid agreement. How are future inheritances and gifts treated? The treatment of future inheritances and gifts—whether included in the joint estate or kept separate—should be clearly specified in the agreement. What about debts and liabilities? The agreement should outline how debts incurred before and during the marriage will be managed. How does business ownership affect an AN? The impact of business ownership on the marriage must be addressed, particularly vital for entrepreneurs and business owners. What are the legal requirements for an AN? The AN must be signed, notarised before the wedding, and registered at the Deeds Office within three months of the marriage. Can I draft an AN after getting married? Generally, an AN should be drafted before the wedding. However, changes are possible, but they require a court application and are subject to certain legal procedures. Both parties must agree to the changes. Changing your marital regime after the wedding can be costly, so it is advisable to draft your AN before marriage. How do I know if an antenuptial agreement is fair? A fair antenuptial agreement should reflect the interests of both parties equitably. It’s advisable to have independent legal counsel for each party to ensure fairness and validity. An antenuptial agreement is not just a legal formality; it’s a practical tool for managing your joint financial life. By considering these key points, couples in South Africa can enter into marriage with clarity and confidence about their financial future. Remember, seeking legal advice is essential in ensuring that your antenuptial agreement is fair, valid, and reflective of both parties’ wishes and needs. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Can you change your marital regime after marriage?
A marital regime determines how parties’ assets will be managed and divided during their marriage and in the event of divorce or death. Changing the marital regime can provide parties with greater financial flexibility and protection. Understanding marital regimes In South Africa, there are three main marital regimes: In community of property: This is the default regime where both spouses share equal ownership of all assets and liabilities acquired before and during the marriage. Out of community of property with the inclusion of the accrual: Under this regime, each spouse maintains separate estates during the marriage, but the growth of their respective estates is calculated and shared equally upon the dissolution of the marriage. Out of community of property without accrual: In this regime, each partner’s assets and liabilities remain separate throughout the marriage, and there is no sharing of accruals upon divorce or death. In terms of section 21 of the Matrimonial Property Act, the marital regime can be changed by mutual consent and by way of an application by the parties to the High Court. Such an application requires compliance with specific procedures to ensure its validity. Both parties need to understand the implications and consequences of changing the marital regime and proper reason must be given for the change of the marital regime. It is important that there is full and proper disclosure when seeking to change a marital regime. The failure to provide full and accurate information may result in the order not being granted by the Court. The parties’ legal representatives will draft a postnuptial contract to reflect the newly chosen martial regime. This contract will specify the new regime the parties wish to adopt, such as transitioning from “in community of property” to “out of community of property with accrual”. The notarial contract must be attested by a notary public. The notary public will verify the identities of the parties and ensure they fully understand the terms and consequences of the proposed changes. The High Court will review the proposed changes and assess whether they are fair and reasonable. The court’s primary concern is to protect the rights of both parties and any potential creditors. It is important that the interests of the creditors, who might be affected by the change, are protected and therefore the court will give proper consideration before granting such an order. After the High Court’s approval and a court order is granted, the amended marital regime must be published in the Government Gazette and two local newspapers to inform creditors and any other interested parties of the change. Once the public notice has been completed, the amended marital regime is registered at the Deeds Office. Registration will finalise the changes and ensure their enforceability against third parties. It is crucial for the parties to carefully consider the implications of changing their marital regime. Each regime has its advantages and disadvantages, and seeking professional legal advice can help parties make an informed decision that aligns with their financial goals and preferences. Changing the marital regime is a legal process that requires careful consideration and adherence to specific procedures. It provides parties with an opportunity to adjust their financial arrangements to better suit their needs and protect their interests. By following the necessary steps, parties can navigate the process smoothly and ensure their new marital regime aligns with their future plans and financial security. WRITTEN BY MARITZA DU PREEZ Maritza du Preez is an Associate at Miller Bosman Le Roux Attorneys. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup