The validity of a verbal Antenuptial Contract (ANC)

There is a common presumption that an Ante Nuptial Contract must be registered for it to be valid, and that it either must be entered into prior to the marriage. This presumption is, however, incorrect as there can be an unregistered ANC, even a verbal contract between spouses.

A verbal (non-registered) antenuptial contract can be binding between the parties because the term antenuptial contract is normally understood in the narrow sense of a contract incorporated in a formal document, executed before a notary public, and registered in the deeds office.

However, the term antenuptial contract can also mean an informal contract, not complying with the formalities required by s87 of the Deeds Registries Act 47 of 1937 (the Act) and it can mean a formal contract duly registered under the provisions of the Act.

In Honey v Honey 1992 (3) SA 609 (W) it was held that an antenuptial contract is valid between the parties and regulates their matrimonial property system even if it is not registered. The effect of registration is merely to give notice to the world of the existence of the antenuptial contract and thereby (in a certain way) to bind persons who are not parties thereto.

The position under common law

In Ex Parte Spinazze and Another NNO 1985 (3) SA 650 (A), the judge sketched the position under common law as follows: According to the law of Holland, no formalities were required for the execution of antenuptial contracts. Not even writing was necessary. In general, writing was regarded as serving the object of providing easier proof of the existence of the contract and its terms but was not essential to the validity of the contract itself. The validity of a verbal antenuptial contract was established as early as 1599 by two decisions of the Hooge Raad. These decisions were to the effect that a verbal antenuptial contract, satisfactorily proved, was not only valid between the parties, but also effective against creditors of either party to the contract. Later Roman-Dutch authorities suggest, however, that to be effective against creditors and third parties the contract had to be entered into in writing and in a public manner.

Legislation

Section 86 of the Deeds Registries Act 47 of 1937 states that ‘an antenuptial contract … executed after the commencement of this Act, shall be registered in the manner and within the time mentioned in section eighty-seven, and unless so registered shall be of no force or effect as against any person who is not a party thereto.’

Sections 87(1) and 88 of the Act are also relevant, and they state that ‘an antenuptial contract executed in the Republic shall be attested by a notary and shall be registered in a deeds registry within three months after the date of its execution or within such extended period as the court may on application allow. Notwithstanding the provisions of sections eighty-six and eighty-seven the court may, subject to such conditions as it may deem desirable, authorize postnuptial execution of a notarial contract having the effect of an antenuptial contract, if the terms thereof were agreed upon between the intended spouses before the marriage, and may order the registration, within a specified period, of any contract so executed.’

The interpretation of section 86, 87(1) and 88 of the Act by our courts

In Ex Parte Minister of Native Affairs In Re Molefe v Molefe 1946 AD 315 it was held that ‘at common law a husband and wife can, as between themselves, by an antenuptial agreement, regulate their proprietary rights after marriage. Such an agreement is binding between the spouses but is of no effect so far as persons not parties thereto are concerned, unless it is duly entered into and registered in accordance with the law governing ante-nuptial contracts as stated above.

For example, two parties conclude an ANC prior to the marriage, but it is not registered. It will be valid and binding between the two of them. Should the parties divorce, they will divorce as though they were married out of community of property in accordance with the ANC they concluded. If a creditor then puts a claim forward against the wife, and their ANC is not registered, the parties will be deemed to have been married in community of property and the creditor will accordingly institute the same claim against the husband.

In Mathabathe v Mathabathe 1987 (3) SA 45 (W) it was held that the existence of such informal antenuptial agreements is expressly recognized by the Legislature in s88 of the Deeds Registries Act 1937. If an antenuptial agreement was arrived at between intending spouses, no matter how informally, the Court is empowered by the Legislature to authorize the postnuptial execution thereof before a notary, and its registration.’

A verbal antenuptial contract

In Ex Parte Kloosman et Uxor 1947 (1) SA 342 (T) the court allowed an application for leave to notarially execute and to register after marriage a verbal antenuptial contract, on being satisfied that the alleged verbal agreement had been proven.

In the case of Odendaal v Odendaal 2002 (1) SA 763 (W), the husband in a divorce action had relied on an alleged verbal antenuptial agreement entered into between him and his wife in terms whereof they had agreed to be married out of community of property, with the exclusion of the accrual system.

The court accepted his evidence that he had informed his intended wife ‘that what was his was his and what was hers was hers’ and held that the parties had agreed to be married out of community of property with the exclusion of the accrual system. On appeal against the judgment of the court it was held that the parties in fact agreed to be married out of community of property but given the husband’s ignorance of the accrual system at the time of contracting that the husband did not discharge the onus of establishing that the parties also agreed to exclude the accrual system.

Conclusion

In conclusion, as established above, formalities are not required for an antenuptial contract to be valid and enforceable between the parties.

However, to be effective against third parties it must comply with the formalities required by s87 of the Act. Consequently, any antenuptial contract, which is proved to have been entered into between the intended spouses, no matter how informally, will be valid between the parties.

The effect of registration is merely to give notice to the world of the existence of the antenuptial contract and thereby to bind persons who are not parties thereto.

However, even though it is allowed, a verbal ANC is exceedingly difficult to prove, as the only witness who can prove the situation is the other spouse. The best option in this regard would be to have your ANC duly drafted by an expert attorney who specializes in such matters and then registered. Rudolf Buys & Associates Attorneys are expert specialist attorneys in family law and can help you regarding these matters so as to ensure certainty and to allow you to circumvent claims from third parties.