Steps to Register an Antenuptial Agreement Process

When preparing for marriage, one important legal step to consider is the antenuptial agreement process. This agreement helps couples define how their assets and liabilities will be managed during the marriage and in the event of a divorce. Registering an antenuptial contract is a crucial part of this process, ensuring that the agreement is legally binding and enforceable. In this post, I will guide you through the essential steps to register an antenuptial contract, making the process clear and manageable.

Notary office with legal documents ready for signing

When to Register an Antenuptial Contract

When parties intend marrying, an antenuptial contract must be considered before the marriage takes place. An antenuptial contract regulates the matrimonial property system applicable to the marriage and determines how assets and liabilities are dealt with during the marriage and on dissolution.

In South Africa, an antenuptial contract must be executed before a notary public and registered in the Deeds Office to be valid and enforceable against third parties.

An antenuptial contract records whether the parties marry out of community of property with or without the accrual system. In the absence of a valid and registered antenuptial contract, the marriage is automatically in community of property.

Before signature, the parties must agree on the terms of the contract. This generally includes the exclusion of community of property, the treatment of assets and liabilities, and whether the accrual system applies. The contract is then drafted by a notary public. Informal agreements or templates are not sufficient.

The contract must be signed by both parties in the presence of the notary before the marriage. If it is signed after the marriage, it is invalid unless a court application is brought, which is costly and not guaranteed.

Once signed, the notary lodges the antenuptial contract for registration at the Deeds Office. Registration must take place within three months of execution, as required by the Deeds Registries Act 47 of 1937.

Registration usually takes between two and four weeks, depending on the Deeds Office workload and whether the documents are in order. Delays typically arise from drafting errors, missing information, or late submission.

Common issues include contracts signed too late, failure to register, incorrect assumptions about marital regimes, and attempting to draft the contract without a notary. Any of these can result in the parties being married in community of property despite their intentions.

Registration of the antenuptial contract is what gives it legal effect. Until it is registered, the contract does not protect the parties against creditors or third parties.

If you are planning to marry and require an antenuptial contract, it should be dealt with well in advance of the wedding date. A notary should be consulted early to ensure the contract is properly drafted, executed, and registered timeously.

If you would like Spence Attorneys to prepare and register an antenuptial contract, you may contact our notarial department to discuss timelines, documentation requirements, and fees.

Disclaimer:This article is provided for general information purposes only and does not constitute legal advice. Each matter depends on its own facts and circumstances. Professional advice should be obtained before taking any action based on the information above.