Share This Article
As attorneys, we always advise clients to ensure that they execute an antenuptial contract before they get married. This means, practically speaking, that the agreement must be reduced to writing. In addition, in terms of section 87 of the Deeds Registries Act 47 of 1937 (hereafter referred to as the “Act”), such an agreement must be registered in the deeds office.
However, according to Lagesse v Lagesse 1992 (1) SA 173 (D) the term ‘Antenuptial contact’ can either mean an informal contract, not complying with the formalities required by s 87 of the Act 47 of 1937 or a verbal agreement.
Duly registered agreements
According to Section 87:
“An antenuptial contract executed in the Republic shall be attested by a notary and shall be registered in a deeds registry within three months after the date of its execution or within such extended period as the court may on application allow.”
Section 88 (applicable to Postnuptial execution of antenuptial agreements):
“Notwithstanding the provisions of sections eighty-six and eighty-seven the court may, subject to such conditions as it may deem desirable, authorize post-nuptial execution of a notarial contract having the effect of an antenuptial contract, if the terms thereof were agreed upon between the intended spouses before the marriages, and may order the registration, within a specific period, of any contract so executed.”
In another case – In Honey v Honey 1992 (3) SA 609 (W), it was held that the term ‘Antenuptial contract’ is not synonymous with the term ‘duly registered Antenuptial contract’.
Thus, according to De Klerk , an Antenuptial contact is valid between the parties and inter partes regulates their matrimonial property system, even if it is not duly registered. A duly registered Antenuptial contract, on the other hand, regulates the parties’ matrimonial property system also as regards to third parties.
In Ex Parte Minister of Native Affairs In Re Molefe v Molefe 1946 AD 315 it was held that:
“At common law a husband and wife can, as between themselves, by an antenuptial agreement, regulate their proprietary rights after marriage. Such an agreement is binding between spouses, but is of no effect so far as persons not parties thereto are concerned, unless it is duly entered into and registered in accordance with the law governing ante-nuptial contracts (See secs. 86 and 87 of Act 47 of 1937.)”
Thus, a written antenuptial contract not registered as set out above, will be binding between the parties themselves and not third parties like banks for example.
In the case of Odendaal v Odendaal 2002 (1) SA 763 (W), the husband in a divorce action had to rely on an alleged verbal antenuptial agreement entered into between him and his wife in terms whereof they had agreed to be married out of community of property, with the exclusion of the accrual system.
According to de Klerk, the court a quo accepted his evidence that he had informed his intended wife that ‘what was his was his and what was her was hers’ and held that the parties had agreed to be married out of community of property with the exclusion of the accrual system.
Furthermore, on appeal against the judgement of the court a quo, it was held that the parties in fact agreed to be married out of community of property, but given the husband’s ignorance of the accrual system at the time of contracting, that the husband did not discharge the onus of establishing that the parties also agreed to exclude the accrual system.
As such, by application to court, a verbal agreement may, similarly to a written agreement not duly registered, apply inter partes (between the parties themselves).
Although there is a possibility that verbal and written agreements not duly registered in the deeds office may apply as between the parties themselves, it can prove costly to bring such an application to court. Moreover, even if successful, same only applies as between the parties themselves and does not extend to third parties. Accordingly, we recommend rather executing an antenuptial contract before marriage and to register same as required. Alternatively, to register one postnuptially and have it registered. Naturally, in circumstances where this is not possible the solution herein outlined will prove useful.
 Magdaleen de Klerk, De Rebus September 2016
 Magdaleen de Klerk, De Rebus