Forgot to sign your ANC before your wedding? Learn about the South African legal process for post-nuptial contract registration to protect your assets.
Written by Roy Bregman, an admitted attorney with over 51 years of experience in matrimonial and family law. This article explains the legal principles and practicalities of post-nuptial notarial execution and registration in South African law, helping spouses understand their rights and obligations regarding antenuptial contracts. For more about the author, visit his biography here.
When couples marry in South Africa, their matrimonial property regime determines how their assets and debts are managed. While many formalize their intentions through an Antenuptial Contract (ANC) signed before the wedding, life circumstances sometimes prevent this. A common misconception is that if you miss this deadline, your only option is to be married in community of property.
However, the law provides a solution: the post-nuptial execution and registration of an ANC. It is crucial to distinguish this from altering your matrimonial property regime (e.g., changing from ‘in community’ to ‘out of community’ of property), which is a different legal process. This process is specifically for couples who had a clear agreement on their matrimonial property system before marrying but, for a valid reason, failed to sign or register the contract in time. This article explains the legal principles, the court process, and what you need to know to formalize your pre-marital agreement after your wedding.
For an ANC to be effective against third parties (such as creditors), it must be notarially executed before the marriage and registered at the Deeds Office within a specified time. If these formalities are not met, the contract is typically only valid between the spouses themselves, and they are legally considered to be married in community of property as far as the rest of the world is concerned.
The courts are empowered to authorize the post-nuptial signing and registration of an ANC. This provides a crucial remedy, but it is not automatic. The applicants must satisfy the court on several key points.
The cornerstone of any successful application is proving that a firm agreement was in place before the marriage ceremony. The purpose of the application is not to create a new matrimonial regime but to give legal effect to one that was already agreed upon. This agreement can be:
A mere uncommunicated belief by one or even both parties is not enough. There must have been a meeting of minds. Proof can include correspondence with an attorney, witness testimony, or even a declaration made to the marriage officer.
An application must be brought to the High Court. This can be done jointly by the spouses or, if one spouse is deceased or unwilling, by the other spouse, their executor, or heirs.
To ensure any interested third parties are made aware of the intended change in the couple’s property regime, a critical step is providing sufficient notice. Notice must be given to the Registrar of Deeds. The proposed change must be published in the Government Gazette and two local newspapers at least two weeks before the court hearing. All known creditors must be notified by certified post or by hand. Failure to provide proper notice will be fatal to the application.
The Registrar will review the application and submit a report to the court.
While not a strict statutory requirement, courts consistently require a reasonable explanation for why the ANC was not signed and registered correctly in the first place. This helps the court verify the genuine existence of the pre-marital agreement. Accepted reasons have included:
A long period between the marriage and the application is not, by itself, a reason for refusal. Courts have granted applications more than 20 years after the wedding. However, an unreasonable delay after discovering the error can be a bar to success. If the parties become aware of the issue and do nothing for a significant period, a court may question their intentions.
If the court is satisfied, it will grant an order permitting the notarial execution and registration of the ANC.
Protection of Creditors: A court order will always state that the rights of creditors that existed before the registration of the contract are not affected. This means the registration only protects the spouses’ assets from future creditors, not existing ones.
Should the application for post-nuptial registration fail, the couple may be able to bring an alternative application under Section 21 of the Matrimonial Property Act to change their matrimonial property system, which is a separate and distinct legal process.
The option to execute and register an Antenuptial Contract post-nuptially is an essential legal remedy that provides flexibility and fairness. It acknowledges that genuine agreements can be derailed by practical challenges. However, it is a court-supervised process with strict requirements designed to protect both the spouses and third parties. Proving the existence of a pre-marital agreement and providing a valid reason for the initial failure to comply are the keys to a successful outcome.
Q1: Can we just sign an ANC after our wedding without going to court?
No. An Antenuptial Contract signed after marriage without a High Court order is not valid against third parties. You must obtain a court order to execute and register it legally.
Q2: What happens if we don’t have a good reason for not signing our ANC in time?
The court needs a credible explanation. If the court believes you simply changed your mind or were negligent without a good reason, your application may be denied.
Q3: How long does the court process take for a post-nuptial contract?
The timeline can vary depending on the court roll and the complexity of the case. However, it typically takes a few months from the time the application is issued.
Q4: Will a post-nuptial contract protect me from my spouse’s debts from before we registered it?
No. The registration does not work retroactively against creditors. Any debts incurred by either spouse before the registration date are not affected by the contract.
Navigating the complexities of matrimonial property law requires expert guidance. If you agreed to marry out of community of property but failed to formalize your Antenuptial Contract in time, it is crucial to act promptly.
Contact Roy Bregman a director of Bregman Moodley, today for a consultation. He can assess your situation and guide you through the High Court application process to secure your financial future.
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