THE PARTIES TO THE ANTENUPTIAL CONTRACT
The parties must be able to validly marry each other. Persons who are prohibited from marrying each other by reason of consanguinity can thus not enter into an antenuptial contract. Take note that it is possible for persons of the same gender to be partners to a “civil union”, which is for all purposes now also recognised as a marriage.
Civil union partners
As a result of the Civil Union Act 17 of 2006 which came into operation on 30 November 2006, partners in a civil union can also conclude and register a valid antenuptial contract. A “civil union” is a “voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the Act, while it lasts, to the exclusion of all The same practices and procedures applicable to the registration of antenuptial contracts of persons married in terms of the Marriage Act 25 of 1961 apply to the registration of antenuptial contracts of persons joined in a civil union. The legal consequences of a marriage contemplated in the Marriage Act and the provisions of the Matrimonial Property Act 88 of 1984 apply to a civil union in exactly the same manner as it is applicable to persons married in terms of the Marriage Act.
Parties to a customary marriage
The Recognition of Customary Marriages Act 120 of 1998 that came into operation on 15 November 2000 gives recognition to marriages concluded according of the customs and traditions observed amongst the indigenous population groups of South Africa. All customary marriages are recognised as marriages, irrespective of whether a person as a spouse in more than one customary marriage - A person who is a party to a customary marriage may not enter into a civil marriage.
A spouse in a customary marriage who do not have a customary marriage with someone else as well, may into a civil marriage with each other. The spouses of a customary marriage must ensure that the marriage is registered within 3 months after the conclusion thereof. However, failure to register a customary marriage doesn’t affect its validity - The proprietary consequences of a customary marriage (in which a spouse is not a partner in another customary marriage), concluded after commencement of the Act is regulated by the Matrimonial Property Act 88 of 1984 in the same manner as it is applicable to other marriages. Customary marriages entered into after commencement of the act (if a spouse is not a partner in any existing customary marriage), is a marriage in community of property and profit and loss, unless the parties enter into an antenuptial contract which will regulate the matrimonial property system of their marriages. Customary marriages entered into before commencement of the Act remains subject to customary Law.
The spouses may nevertheless apply to the court for leave to change the matrimonial property system applicable to their marriage. When a spouse in a customary marriage wishes to enter into a further customary marriage he must make an application to the court for the approval of a written contract which will regulate the future matrimonial property system of his marriages. The court is required to terminate the matrimonial property system then applicable to the existing marriage and to effect an equitable distribution of the property, taking into account all the relevant circumstances of the family groups which would be affected if the application is granted. The court may allow further amendments to the terms of the contract or grant the order subject to any condition it may deem just. The court may refuse the application if in its opinion the interests of any of the parties involved would not be sufficiently safeguarded by the proposed contract.
If an intended spouse is still a minor, he/she must be assisted by one of his/her parents or by his legal guardian when executing the antenuptial contract. Although only the consent of one of the parents or the legal guardian is required to the entering into of the antenuptial contract, both parents must consent to the contracting of the marriage. Take note that the minor himself must sign the contract. The parent or guardian may not sign the contract on behalf of the minor. The parent or guardian will simply signify his/her assistance by co-signing the contract together with the minor. Both parents must assist the minor if the antenuptial contract makes provision for any alienation of immovable property or a right to immovable thereto belonging to the minor.