Postnuptial Nightmares

The Ante Nuptial Contract (ANC) is an extremely important document, however, most people do not understand its importance or its implications.  The ANC applies to marriages out of community of property and governs what will happen to all assets and liabilities on death or divorce.  Parties give considerable thought to their Wills but often do not understand that the very ownership of the assets that they dispose of in the Will may be questioned if the ANC is not properly drawn.

That being said, ensuring that it is executed correctly is something that all individuals need to be made aware of.

Benefits of an Ante-nuptial Contract

  • If either party is declared insolvent, the other spouse is protected from the insolvent spouse’s creditors;
  • An Ante-nuptial Contract can be drafted in such a way so as to cater for your unique and individual circumstance.
  • The respective spouses will not be held liable for any debt that the other spouse might have incurred prior to the marriage;
  • Spouses will not be held liable for any debt that the other spouse may incur during the marriage;
  • Assets that, for sentimental or financial reasons, the spouses do not want to form part of a joint estate can remain separate;
  • Spouses will not need to obtain each others consent when dealing with their own property.
  • Ante-nuptial contracts remove the risk in regard to all the spouses combined assets, should one of the spouses undertake a business venture, allowing for the protection of assets from creditors;
  • Each spouse is able to retain his or her individual financial identity.

Concluding an Ante-nuptial with Accrual is, by and large, the fairest of the matrimonial regimes.

The Postnuptial Nightmare

Should one enter into an ante-nuptial contract and not have this executed correctly, one could find oneself married in community of property without knowing about it. What does this mean exactly?

Example Scenario:

Mick and Jane are in love and decide to get married. After discussing things, they have agreed to enter into an ante-nuptial contract to ensure financial security.

Mick and Jane decide to approach an attorney friend to draft the necessary paper work to ensure that their wishes are met.

Mick and Jane then decide to have a Power of Attorney drawn up, as they don’t want to deal with having to sign the ante-nuptial contract. The attorney will then do this for them on their behalf. They have a beautiful ceremony on the 5 of September 2017 and think that they are married out of community of property with accrual.

A few months later Mick wants to buy a home in his name and runs into some trouble as the bond is denied due to the fact that he is actually married in community of property.

Upon investigation they find that the ante-nuptial contract was signed in front of a Notary public, but only on the 12th of September 2017. (Their attorney friend got his dates mixed up.)

In terms of section 87 of the Deeds Registry Act this contract must be signed in front of a Notary Public and be duly registered and executed before the wedding takes place for it to be valid.
If this does not occur, you will be married in community of property regardless of what that contract states.

STEPS TO CORRECTING THE PROBLEM

The only way one can correct this is to make an Application to the said High Court who has jurisdiction and request that the martial regime be changed.

WHAT IS NEEDED FROM THE CLIENT

What the attorney will need is a copy of the said ante-nuptial contract, power of attorney, current bank statements, mortgage bond statements, car finance statements etc. as this will paint the necessary picture for the Judge to grant the changing of the martial regime.

Note that a Postnuptial Agreement needs to be drawn up and attached to the Founding Affidavit, but this then also needs to be signed by the parties in front of a Notary Public, as this will need to be registered with the Deeds Office.

One just needs to be aware of the fact that the contents in this Postnuptial Agreement will contain the same information that was in your original ante-nuptial contract. The reason for this is that your appointed attorney is then attempting to “make it look like the registration of the Postnuptial Agreement went smoothly the first time and that there were never any mishaps.”

Once all the necessary documentation has been drafted, Notice needs to be advertised in two newspapers. One in a local newspaper and the other in the National newspaper of said province. Notice will also need to be placed in the Government Gazette. All this has to be done three weeks before the matter is heard in court.

Simultaneously one will have to send notice to each spouses’ creditors three weeks before it’s heard in court. The contents of these letters should include when the matter will be heard in court and why. This is a formality that must be adhered to as all the creditors must have an opportunity to object to the change, should they wish to.

The last thing that then needs to be done is to have the Judge grant the order. Once an Advocate brings the matter in open court to the Judge and it gets granted, the said granted court Order allowing the marriage of in community of property to be changed to either out of community of property with/without the accrual system needs then to be sent to the Deeds Office so that the Postnuptial Agreement gets registered.

Randles Attorneys offers a fully comprehensive Ante -Nuptial Contract service to couples.

By: Narisha Rahim-Harry – Candidate Attorney

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