Can an unregistered antenuptial contract be binding?

Very recently this year, the Durban High Court heard a divorce case that raised a very important question surrounding marriage, antenuptial agreements and marital property regimes. It had to engage with the idea of an unregistered antenuptial contract.

unregistered antenuptial contract

The facts

This case involved two parties that were married and now wanted to divorce. Prior to their marriage, the parties had decided to be married out of community of property and so wanted to enter into an antenuptial agreement (an antenuptial agreement allows you to marry out of community of property: you can read our blog post here if you are unsure what the terms in/out of community of property and antenuptial contract mean). In order to achieve this goal, the parties authorised their attorney to carry out the necessary steps in the process on their behalf. That is, the attorney was meant to execute the contract in the presence of the required official and then register the contract in the deeds office on their behalf. The parties did not know, however, that the contract was not executed, nor was it registered in the deeds office.

The question to be answered

There was therefore no official antenuptial contract. The parties had only initialed a draft version of the contract and had given their attorney authority to execute the contract and register it through signing power of attorney. The question that the court had to answer was whether these circumstances were enough to recognise a legitimate antenuptial contract. Whether this contract could be recognised accordingly affected whether the parties were married in or out of community of property.

What the court said

The High Court acknowledged that the antenuptial contract was not registered. This meant that the contract would have no force or effect against any person not party to the contract (that is, any person other than the married couple). Nevertheless, the court held, the parties had agreed prior to the marriage that their marriage would be governed by an antenuptial contract. The unregistered antenuptial contract reflected the common intention of the parties to be married out of community of property. The court found that an informal antenuptial contract existed between the married couple. The contract would therefore be binding between the married couple themselves.

This judgment by the Durban High Court shows that there is scope for unregistered antenuptial contracts still to be binding on the parties to the contract.

Need help?

But the take-home message to anyone looking to marry and enter into an antenuptial contract: make sure you do things right! Avoid any potential complications in the future: ensure you choose an attorney who knows what they are doing. If you need any advice on antenuptial contracts please do not hesitate to contact us at [email protected].

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