Did you know that if prospective spouses do not execute their antenuptial contract before their marriage, they are automatically considered to be married in community of property. Similarly, if prospective spouses execute an antenuptial contract, get married, and later find out that the antenuptial contract was not registered within the 3-month period required by law, their marital regime is regarded as in community of property.
A brief overlook as to what can be done should you be in this situation:
- Should spouses not execute their antenuptial contract before their marriage then according to section 21 of the Matrimonial Property Act 88 of 1984, it’s possible to apply to the High Court if no antenuptial contract was entered into and the spouses intend to change their marital property regime from in community of property to out of community of property (with or without the accrual).
If we look at the latter, if prospective spouses execute an antenuptial contract, get married, and later find out that the antenuptial contract was not registered within the 3-month period required by law.
- In the instance where the antenuptial contract is not registered within the 3-month period then the antenuptial contract is only binding between the spouses and not against third parties. Therefore, if spouses want to rectify the marital regime to be out of community of property as intended, they can jointly apply to the relevant High Court for an order authorizing them to execute and register a postnuptial contract with the same effect as the intended antenuptial contract. A change in the marital regime requires a Court Order.
- In terms of Section 88 of the Deeds Registries Act 47 of 1937, it is possible to make an application to the High Court should a notary fail to timeously register the antenuptial agreement within the 3-month period and where the terms of the matrimonial property regime were agreed upon between the intended spouses before the marriage.
Such an application is made in terms of Section 21(1) of the Matrimonial Property Act 88 of 1984, read with section 88 of the Deeds Registries Act 47 of 1937. The effect of a court order in terms of section 88 is that, although executed and registered after the conclusion of the marriage, it will be effective from the date of marriage.
Keep an eye on our social media platforms as in my next article I will go more into detail by discussing the requirements to attend to the said High Court Application, what is looked at and a few tips to avoid this from happening.
By Zakiyyah Williams
