What are the Requirements for an Antenuptial Agreement?

Understanding the Requirements for an Antenuptial Agreement in South Africa

You've found your soulmate, she said YES, and now it's time to consider an Antenuptial Contract (ANC)!

But what exactly does that entail? Let’s delve into the details.

In South Africa, if you don’t sign an ANC, you are automatically married in community of property. This means that all assets and debts are shared equally.

To opt out of this system, you must sign and register an ANC.

Why Consult a Lawyer?

It's crucial for both parties to meet with the lawyer drafting the ANC.

This ensures that you fully understand the implications of the contract. Ignorance isn't bliss when it comes to legal agreements!

Key Requirements for Registering an ANC:

  1. Legal and Enforceable Contract: The ANC must be legally binding. For instance, a minor cannot sign an ANC without parental or guardian consent. Similarly, you cannot stipulate conditions that violate basic rights, such as denying a spouse contact with children due to infidelity.
  2. Qualified Notary: The contract must be executed by a registered notary and registered at a Deeds Office in South Africa. Verify the notary’s credentials before scheduling your appointment.
  3. Timing of the Contract: The ANC must be signed before the wedding ceremony. However, registration can occur afterward. The notary will provide a certificate to present to the marriage officer as proof.
  4. Registration Deadline: The ANC must be registered within three months of signing at a Deeds Office.

Missed the Pre-Wedding Deadline?

If you didn’t sign an ANC before marriage and now wish to change your marital property system, you can still convert from community of property to an ANC.

This process is more complex and expensive, requiring public notification for creditor objections.

A competent lawyer can guide you through this process.

Executing an ANC: Detailed Steps

  • Notarial Form: Only a practicing notary can execute the ANC. The notary must be impartial and not closely related to either spouse. The notary’s seal is affixed to the last page, with initials on the inner pages.
  • Protocol Number: The ANC typically includes a protocol number.
  • Date and Place of Execution: The contract must be signed before the marriage date. If signed on the wedding day, the exact time of execution must be recorded. Example: "At 12:00 on the 14th of May 2023, before me, [Notary's Name], a duly admitted and sworn Notary in Pretoria, Gauteng Province..."
  • Signatures and Witnesses: Both spouses must sign the ANC in the presence of the notary and two competent witnesses (persons over 14 years who can give court evidence). If signing on different dates, the latest date is considered the contract date. Spouses may sign before different notaries or appoint an authorized person via a power of attorney to sign on their behalf.

Registration Details

  • Jurisdiction: The marital property regime is governed by the law of the husband’s domicile at the time of marriage. The husband need not be domiciled in South Africa for ANC registration there.
  • Time Frame: ANCs executed in South Africa must be registered within three months of signing. ANCs signed abroad must comply with local laws and be registered in a South African deeds registry within six months.
  • Legalization: Notarial attestation of ANCs signed outside South Africa must be legalized.

Failure to register the ANC within the stipulated time renders it ineffective against third parties, though it remains valid between the spouses.

Choosing the Right Deeds Office

Registering the ANC at any Registrar of Deeds office makes it effective nationwide.

Starting your married life on the right legal footing ensures peace of mind for both partners.

Consult with a qualified notary to ensure your ANC is properly executed and registered.