ANCs — Practical Considerations and Common Questions
Key Takeaways:
ANC practical considerations and FAQs offer insights for couples contemplating entering into an antenuptial contracts.
Addressing key questions on enforceability, content, and timing is essential.
Legal consultation with a Notary ensures a customised, valid ANC aligned with the couple's intentions.
There’s more about ANCs?!
Very importantly - your ANC must be signed before you are married (and this includes customary marriages. For more info on this process click here.
You must be kidding…..
We previously wrote an article on what a marriage contract is and what types of marital regimes there are - The Lowdown on Ante Nuptial Contracts and the Accrual System.
But there is actually more to it than just deciding on your marital regime – there are a lot of practical considerations that need to be taken into account. We thought we would go through some of those, remembering that there is never a stupid question! Here are some of the most common ones –
How to get an ante-nuptial contract (ANC) in South Africa
Well, like anywhere else in the world, you are able to obtain an ANC online by answering a few questions and completing a type of asset register (especially if you have chosen to be married out of community of property and without the accrual) and thereafter obtain a drafted ANC. However this does not always involve the actual registration process that needs to accompany the signing of the ANC. So be cautious when looking at do-it-yourself online ANC’s.
Alternatively, you are able to brief attorneys to draft an ANC for you. This will involve meeting with your attorney (who must also be a Notary Public), discussing aspects around your estates and the way forward for you and your fiancés future – like the type of marital regime, whether you include or exclude accrual, the actual drafting of the ANC, notarising and registration of the ANC at the Deeds Office.
But, it could also be a hybrid of the two, where you do a little of both.
This hybrid approach may be along the lines of -
Completion of an online questionnaire: https://benaters.formstack.com/forms/ante_nuptial_contract;
as soon as the submission from your questionnaire has been received, your attorney will contact you in order to schedule a Zoom consultation, which will be held with both yourself and your fiancé in order to take instructions;
following the Zoom call, your attorney will attend to the initial drafting of the ANC whereafter it will then be sent back to you for comment;
once an initial draft is done, your attorney will arrange a face to face meeting to discuss any further detail and finalise the ANC;
once the final draft of your ANC is drafted, your attorney will assist with tending to the signature thereof before a Notary Public and notarizing of the ANC by a Notary Public (it is always better if the attorney you go to is also a Notary, making the whole process simpler), and
once your ANC has been notarized, your attorney will then tend to the registration thereof at the Deeds Office.
Very importantly - your ANC must be signed before you are married (and this includes customary marriages. For more info on this process click here.
When must the ANC be concluded?
In South Africa, if a couple does not enter into an ANC, the marriage will result in one that is in community of property and community of profit and loss (accrual).
Therefore in order to avoid that situation (if that is your choice), the happy couple should conclude an ANC prior to the date of marriage. Where the marriage happens on the same day that the ANC is executed, then the Notary must disclose both the date and the time of execution of the ANC in order to verify that the ANC was, in fact, executed prior to the actual wedding/marriage.
Do we have to register our ANC?
In order for the ANC to be effective against third parties, it needs to be registered in the deeds office. If it is not registered in a deeds registry it will only be effective inter partes (meaning “between the parties”). And this can have a significant effect on the financial consequences of the marriage going forward i.e. in situations where either the husband or wife is a delinquent payer (as an example) the other party would be jointly liable for any debts that arise due to their inability to pay (as they would be automatically married in community of property).
Furthermore, according to Section 87 of the Deed Registry Act (DRA) 47 of 1937 (as amended), an ANC is required to be registered in the deeds registry within three months of the date of its execution. Failure to register the ANC within that period will necessitate having to apply to Court (in terms of Section 87 of the DRA) to ask for an extension of time from the Court to have the ANC duly registered.
Section 87 is only applicable to an ANC that is properly attested and executed prior to the date of the marriage.
In the event where a couple mistakenly believes that they can conclude their ANC three months after their marriage (as opposed to the three months allotted to register it having concluded it prior to the wedding) and did therefore not conclude their ANC prior to the wedding (a common mistake), section 88 of the DRA steps in. This section provides for the execution of a postnuptial contract having the effect of an ANC. Such a postnuptial contract requires an order of Court for its execution and registration. Basically, section 88 makes provision for a situation where, prior to the wedding, the parties had legitimately agreed to exclude community of property and the accrual from their marriage, but for some or other reason did not do so. Section 88 is reserved for mistakes preventing registration of the ANC, as opposed to actually entering into a postnuptial agreement (as set out below).
What if we change our mind about the marital regime?
By law you are not allowed to execute an ANC after marriage (keeping in mind that you can apply to court by means of Section 88 of the DRA to extend the time to register the ANC due to a mistake/misunderstanding). The good news is - it is possible to change your matrimonial property regime from in community of property to out of community of property by registration of a Postnuptial Contract by virtue of s 21(1) of the Matrimonial Property Act with the permission of the High Court.
Section 21 of the MPA provides for the situation where parties, who were duly married to each other (at any point in time) in accordance with the marital regimes which they elected to adopt at the time of the marriage, but now wish to alter the matrimonial regime which applies to their marriage. In other words - the couple has reconsidered their matrimonial regime that they agreed to prior to the date of conclusion of their marriage, and they now wish to change that regime.
Section 21 of the MPA will require both parties to the marriage to make an application to the High Court to ask the Court to grant the parties leave to sign a Notarial Contract (having the effect of a postnuptial contract), which after registration will regulate their new matrimonial property system. This will also involve the parties being required to depose to a founding affidavit to the effect that they have elected to change the marital regime which they had previously agreed upon prior to their marriage.
In order for the parties to change their matrimonial property regime, the MPA provides that the following requirements must be met before the matrimonial property regime will be changed:
there must be sound reasons for the proposed change;
notice of the intention to change must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the application will be heard, and must be given by certified post to all known creditors;
the draft notarial contract, which the parties propose to register, must also be annexed to their application;
evidence provided that no other person will be prejudiced by the proposed change;
the rights of creditors must be preserved in the proposed contract, and
the application must contain sufficient information about the parties’ assets and liabilities to enable the court to ascertain whether or not there are sound reasons for the proposed change and whether or not any particular person will be prejudiced by the change.
This situation is clearly discernable from the situation contemplated in Section 88 of the DRA (above), where the parties had, right from the beginning, intended their marriage to be governed by the terms of an ANC entered into prior to the date of the marriage, but for some or other reason, this was not done.
When the court is satisfied that the requirements have been met, it will order that the existing matrimonial property regime no longer applies to the marriage and authorise the couple to enter into an ANC by which their future matrimonial property regime will be regulated.
The High Court (where the application is brought), must be satisfied that no other person will be prejudiced by the future change. In addition, the court must be satisfied that the rights of creditors of the parties must be preserved in the planned contract so the application must contain adequate information about the parties’ assets and liabilities to allow the court to determine whether or not there are good reasons for the intended change and whether or not any other person will be prejudiced by such amendment.
And that seems like a tall, expensive order! Some advice - ensure that you are entering into the correct marital regime for you prior to the wedding. Be safe and not sorry – speak to us and we can advise you correctly.
If the court is content that the requirements have been met, it can then order that the existing matrimonial property regime may no longer apply to the marriage and approve that the parties may enter into a notarial contract by which their future matrimonial property regime will then be regulated. Once this order is granted, this now postnuptial contract is executed and thereafter registered in the Deeds Office.
What is the difference between an antenuptial contract and a postnuptial contract?
It’s as simple as this - an ANC is a contract regulating the proprietary consequences of a marriage, executed before the marriage of the newlyweds. A postnuptial contract is, therefore, a contract regulating the proprietary consequences of a marriage, executed after the marriage of spouses.
Wait! What is a prenup?
A prenuptial agreement is exactly the same thing as an antenuptial agreement. So don’t fret. We have covered this already.
What language can our ANC be in?
Currently ANC’s can be concluded only in English and Afrikaans. However, should you wish to conclude your ANC in one of the other official languages we suggest that application be made to the High Court in line with Section 21 of the MPA and enter into a postnuptial agreement in your chosen language – if the court rules in your favour.
There is no case law to support this type of application. But there is nothing to say that it cannot be done. It may just take extra time. And of course, will require extra money.
But remember this - whatever marriage regime you choose, whether you fail to register it on time or need to amend it later – we have you covered. Contact us today to see how we can help you during this tremendously happy time.
American journalist and writer, Mignon McLaughlin said this of marriage –
“A successful marriage requires falling in love many times, always with the same person.”
And at Benaters, we wish you a lifetime of exactly that – falling in love continuously with your spouse-to-be!
Written by Alicia Koch on behalf of Benaters