A client resides abroad, while her fiancé lives in South Africa. She inquired about the procedure for entering into an antenuptial contract.
An antenuptial contract is a legal agreement entered into by two people before they get married. It determines how their assets will be divided in the event of a divorce or death. If one party lives abroad and the other lives in South Africa, they may wonder how to enter into an antenuptial contract. This article will provide guidance on how to do so.
Summary of the Law
If both parties live overseas, a local South African notary can prepare the antenuptial contract according to the wishes of the parties, and the parties can execute the antenuptial contract abroad. Alternatively, the local notary may prepare a special power of attorney authorizing an agent to sign the antenuptial contract on behalf of the party or parties who are unable to execute the antenuptial contract personally in the Republic. The special power of attorney, together with a copy of the antenuptial contract, must be executed in the foreign country by the said party or parties and thereafter authenticated. Once authenticated, the original special power of attorney must be delivered to a South African notary to be retained in their protocol. The South African notary will ensure that the original antenuptial contract executed by the agent is lodged and registered at the relevant deeds registry in South Africa.
Authentication is a crucial process in ensuring the validity of an antenuptial contract. The signature on the special power of attorney must be verified abroad by a legally accepted process. If the party or parties live in a country that is a member of the Hague Convention, an Apostille certificate is required to certify the authenticity of a signature. It is important to follow the legal requirements to ensure that the antenuptial contract is valid and enforceable.