Formalities regarding Antenuptial Contracts


Must be in Notarial form:- 

Only an admitted and practicing notary may execute an antenuptial contract. The notary executing the contract must not have a personal interest in the contract and must in particular not be closely related to one of the intended spouses. The notary’s seal of office or embossing seal is usually affixed on the last page of the contract in the absence of the seal of office; the inner pages of the contract must be initialed by the notary. 

Protocol number:- 

It is general practise to refer to the protocol number in the antenuptial contract. Date The antenuptial contract must be entered into prior to the date of the marriage. If the contract is executed on the same date than the date of marriage, the exact time of execution must be inserted. Examples At 12:00 on this the 14th day of May 2013, before me, xxx , a duly admitted and sworn Notary, practicing at Pretoria, Gauteng Province, and in the presence of the undersigned witnesses, there personally appeared:- 

Place of execution 

The place of execution must be mentioned. Signature Both intended spouses must sign the antenuptial contract before a notary, in the presence of two competent witnesses. If the parties sign on different dates, the latest date will be regarded as the date of the contract. The parties may sign the contract before different notaries or may even appoint and authorise another person or persons by means of a written power of attorney to appear before a notary and to sign the antenuptial contract on their behalf. 

If a third person is joined as a party to the contract, such a person must sign the contract as well. Definition of a Competent Witnesses Two competent witnesses must attest the parties’ signatures. A person above the age of 14 years who is able and competent to deliver evidence in court, qualifies as a competent witness. 

REGISTRATION 

The proprietary consequences of a marriage are governed by the iaw of the country in which the husband was domiciled at the time of conclusion of the marriage. It is not necessary for the intended husband to be domiciled in the Republic of South Africa to enter into an antenuptial contract for registration in the Republic. Contracts executed in the Republic of South-Africa must be attested by a notary and must be registered in an office of the registrar of deeds within 3 months after date of its execution, or within such extended period as the court may on application allow.

Contracts executed outside the Republic of South-Africa must be attested by a notary or otherwise be entered into in accordance with the law of the place of its execution, and must be registered in a deeds registry within 6 months after the date of its execution. The Notarial Attestation needs to be legalised. 

Contracts not registered in a deeds registry within the time period as set out above, will have no force or effect against third parties, but will however be valid inter partes. 

Which Office of the Registrar of Deeds?

Registration of an antenuptial contract in any one of the offices of the Registrar of Deeds is operative in the whole of South Africa.