My wife and I were married on 3 March 2017. Before we entered into our marriage, we decided that it was best for our matrimonial property regime to be governed as one of out of community of property with accrual. We then looked up a notary in the area and signed an antenuptial contract on the 14 February 2017. We never heard anything more from the notary. I am now seeking to buy a unit in an upcoming new scheme and the conveyancer dealing with the property is asking for my antenuptial contract to confirm my marital status as out of community of property. I have forwarded her my antenuptial contract. To my surprise, she claims that the antenuptial contract is invalid. How can this be, as I have signed before the date of my marriage in front of a notary public and had the intention of my marriage being one out of community of property?

Many people make the mistake of not following up with the notary who executes their antenuptial contract after they have signed it. This is a very misinformed decision, as a few things need to be complied with in order for your antenuptial contract to be valid. Firstly, the antenuptial contract must be concluded before the date of your marriage. Secondly, if you had signed a Power of Attorney, giving another person the authority to appear before the notary on your behalf, the date that the authorised person appears before the notary also has to be before the date of your marriage. Thirdly, the contract then needs to be registered in the Deeds registry within three months of date of execution.

If any of these circumstances occur, namely that you are married before you conclude an antenuptial contract, or the authorised person you gave Power of Attorney to, appeared before the notary after the date of your marriage, or the notary did not register the antenuptial contract within three months of date of execution, your antenuptial contract will be invalid. The implication thereof is that the default marriage system applicable in South Africa, namely a marriage in community of property, will then apply to your marriage.

The only way to rectify this is by making an application to vary your matrimonial property system. This is done in terms of Section 21(1) of the Matrimonial Property Act 88 of 1984, which provides that spouses may apply jointly to court for consent to vary the matrimonial property system which applies to their marriage.

This process, though lengthier than a normal antenuptial contract and considerably more expensive, is not an insurmountable task. You and your spouse will have to apply to the court to vary your matrimonial property system to one out of community of property. The court will consider the following:

(a)    Whether there are sound reasons for the change;
(b)    Whether sufficient notice has been given to the creditors of both spouses; and
(c)    Whether any other person will be prejudiced by this change.

If the court gives leave to vary your matrimonial property system, you and your wife will then have authority to enter into a notarial contract by which your future matrimonial property system will be governed.

The duty lies on the attorney to make sure that all the pre-requisites regarding the court procedure is followed. This entails, obtaining a report from the Registrar of Deeds, advertising in the government gazette of the proposed change in the matrimonial property regime, as well as a letter to all the spouses’ creditors informing them of the proposed change. This letter will contain all the necessary details for any creditor who feels prejudiced to appear at the hearing of the application before the court and to oppose same.

Once the court has granted the order, a post-nuptial contract has to be registered in the Deeds registry. This has to be done within two months of the court order being granted and your matrimonial property regime will then be varied to one out of community of property as you initially intended.