Antenuptial Contracts: One Notary, Three Months, a Lifetime

There is one appointment nobody wants to make before a wedding, and it is the one that matters most. An antenuptial contract, often called a prenup, is not a sign of doubt. It is the document that decides what happens to everything you own, and everything you owe, for the rest of your marriage.

If you marry in South Africa without an antenuptial contract, you are married in community of property by default. That means everything either spouse owned before the marriage, and everything either spouse acquires during it, is merged into one joint estate. Your spouse’s creditors can claim against your assets. Your half of the estate can be sold to settle a business debt you had nothing to do with.

What an antenuptial contract changes

Signing an antenuptial contract before the wedding keeps your estates separate. The most common form is marriage out of community of property with the accrual system, which is what most couples actually want.

Under the accrual system, each spouse keeps their own property and their own debts during the marriage. When the marriage ends, by death or divorce, the spouse whose estate grew by less shares in the difference between the two estates. It is a middle path: protection during the marriage, fairness at the end of it, and a calculation that often surprises people who expected to walk away with nothing.

Going without accrual is possible, but it is a hard position to defend if the marriage ends and one spouse has built a business while the other raised children.

The date you sign, and the date it is registered

This is where couples get caught.

An antenuptial contract must be signed before the marriage takes place, in the presence of a notary public, and the notary must then register it in the deeds office within three months of signature. A contract that is not registered within that period is of no force or effect. Couples who sign ten minutes before the ceremony and never follow up with the notary discover years later that they are married in community of property after all.

The hierarchy is unforgiving: notary first, registration within three months, marriage after signature. There is no way to backdate an antenuptial contract.

If you missed it

If you are already married in community of property and want to change, you cannot simply sign a document. Section 21 of the Matrimonial Property Act allows spouses to apply to court for leave to change their matrimonial property system. The court must be satisfied that there are sound reasons, that creditors will not be prejudiced, and that other interested parties have been notified. It is a formal application to the High Court, and it needs a properly drafted agreement, not a template.

Notaries do more than antenuptial contracts

A notary public is an attorney with an additional appointment and additional qualifications, and the acts reserved for a notary cannot be performed by anyone else. Apart from antenuptial contracts, notarial work includes notarial bonds over movable property, notarial leases, personal servitudes such as usufructs, and the authentication of documents for use outside South Africa.

That last one catches people out regularly. A power of attorney signed for use in another country, or a document required by a foreign authority, usually has to be notarially authenticated before it will be accepted. Leaving it to the day before a flight is not a plan.

Practical steps

• Decide on your matrimonial property regime before the wedding arrangements take over
• See the notary early, not on the morning of the ceremony
• Confirm in writing that the notary has registered the contract within three months
• If you own a business or property, consider what accrual will mean for you
• If you are already married in community of property, ask about a section 21 application

How We Can Help

Our notarial practice prepares and registers antenuptial contracts, notarial bonds, servitudes and notarial leases, and authenticates documents for use abroad. Oupa Baloyi is an admitted notary. A single consultation before your wedding is the cheapest legal advice you will ever receive.