John and Susan are getting married on the 5th of October 1993. They have chosen to get married by way of an Antenuptial Contract. John and Susan signed the contract on the 3rd of October 1993 in front of their attorney who had a Power of Attorney on their behalf to sign in front of a Notary, as the attorney was not a Notary, as well as in front of two witnesses. The attorney had the contract executed in front of the Notary on the 23rd of October 1993. John and Susan got married on the 5th of October 1993, in the knowledge that their marriage was out of community of property as they had signed the Antenuptial Contract on the 3rd of October 1993. John and Susan lived happily ever after or did they?
John and Susan never followed up with their attorney to confirm that their Antenuptial Contract was executed by the Notary before they got married on the 5th of October 1993. They simply assumed all was in order. Once the Antenuptial Contract was registered at the Deeds Office on the 5th of November 1993, the attorney forwarded the Antenuptial Contract to John and Susan for safekeeping.
Some years later, Susan decided to purchase a property in Camps Bay. She applied for a bond at Investment Bank on her name only and furnished them with all the necessary documents to assist with the qualification of the Bond, including the Antenuptial Contract. The Legal Risk department, after perusing Susan’s documents, questioned the legality of the Antenuptial Contract. It was signed on the 3rd of October 1993, two days before the marriage, and registered at the Deeds Office on the 5th of November 1993, within the three months of execution, so why is the legality of the Antenuptial Contract being questioned?
Upon closer scrutiny of the Antenuptial Contract, it was noticed that the Antenuptial Contract, although signed by John and Susan two days before their marriage, was only executed by the Notary on the 25th of October 1993, which is after their marriage was solemnised. In terms of Section 87 of the Deeds Registry Act 47 of 1937, the contract must be executed by a Notary before the date of marriage, failing which the contract is invalid and the parties are declared to be married in community of property. Thus, Investment Banking will now require John to sign a spousal consent form, and the property will form part of both John’s and Susan’s estate.
In terms of Section 21(1) of the Matrimonial Property Act 88 of 1984, John and Susan may approach the High Court by bringing an application to have the Antenuptial Contract declared valid. Although a lengthy and expensive process, it is not impossible to have the marriage regime rectified to constitute marriage out of community of property.