How is an antenuptial contract concluded?

Last I talked about what an antenuptial contract is and why it is important. If you missed that post, click here. Now, how are antenuptial contracts concluded?

How are antenuptial contracts concluded?

You have to conclude an antenuptial contract in the presence of a notary. Notaries are attorneys with the additional qualification as a notary public. Firstly, you (you being both parties to the antenuptial contract) have to arrange a consultation with a notary prior to the marriage. The notary will take instructions on how you would like the antenuptial contract drafted. He/she will arrange with you to come and sign the contract in his/her presence once it has been drafted. The notary will then lodge the original antenuptial contract in the Deeds Office for registration. After the antenuptial contract is registered, it will be sent back to you for safe keeping.

And that is how antenuptial contracts are concluded.

Can an attorney (who is not a notary) help me with an antenuptial contract?

An attorney can also draft an antenuptial contract for you. You will need to arrange for a consultation with an attorney and give him/her instructions on how the contract must be drafted. The attorney will then draft the antenuptial contract together with a power of attorney. The attorney will arrange with you to come and sign the documents at his/her office.

The power of attorney will state that you have read the drafted antenuptial contract and that you agree to it. You will also give permission that a representative may sign the actual antenuptial contract on your behalf in front of the notary. This is important since you won't be appearing in front of the notary yourself. Attached to the power of attorney will be a copy of the antenuptial contract. You must initial this copy to show that you agree with the content thereof.

The attorney will send the following to the notary's office:

• the signed power of attorney,

• the initialed copy of the antenuptial agreement attached to the power of attorney, and

• an unsigned copy of the antenuptial contract.

The notary will conclude the contract as indicated above. The notary will then lodge the antenuptial contract in the Deeds Office for registration and upon registration you will receive the original for safe keeping.

You will have to provide the notary or attorney with copies of your identity documents.

What happens if I’m already married, but want to change my matrimonial regime?

People sometimes end up misinformed about matrimonial property systems or they don't seek advice from professionals on this subject. You can change your matrimonial regime after marriage by entering into a postnuptial agreement.

Both parties (the spouses) must make an application to the High Court in order to conclude a postnuptial contract.. This application must ask the court to grant leave to sign a notarial contract (the postnuptial contract). The court will then decide whether or not to grant the requested leave. If granted, the parties can sign the postnuptial contract in front of a notary. The notary will then register it in the Deeds Office. Upon registration the marriage will be regulated by the new matrimonial property regime.

How the postnuptial application process works:

Lourens et Uxor 1986 (2) SA 291 (C) sets out the requirements for concluding a postnuptial application and postnuptial contract as follows:

1. The application must give sound reasons for the proposed change.

2. The parties must give sufficient notice to all creditors and to the Registrar of Deeds. This is usually done via certified post.

3. You must advertise the proposed change in the Government Gazette and two local newspapers two weeks before the application is heard in the High Court.

4. The court must be satisfied that no other person will be prejudiced by the change in matrimonial regime. Therefore the application must contain sufficient information about the parties’ assets and liabilities.

5. The application must indicate whether or not either, or both, of the parties have previously been sequestrated. If yes, then the application also needs to state when and under what circumstances.

6. The application must state whether there are pending legal proceedings by a creditor seeking to recover payment of debt.

7. The application must have a copy of the postnuptial contract attached.

8. The new contract must preserve the rights of the creditors.

Is it necessary for me to have a will if I have an antenuptial contract?

An antenuptial contract does not indicate what should happen to your assets upon your death. A will determines who receives your assets, who should be the executor of your estate and will simplify the administration of your estate as a whole. So yes, it is necessary for you to also have a will.