The validity of a verbal antenuptial contract

August 29th, 2016
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By Magdaleen de Klerk

Very few people, even legally qualified ones, are aware of the fact that a verbal (non-registered) antenuptial contract can be binding inter partes 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 either mean an informal contract, not complying with the formalities required by s 87 of the Deeds Registries Act 47 of 1937 (the Act) or it can mean a formal contract duly registered under the provisions of the Act (see Lagesse v Lagesse 1992 (1) SA 173 (D)).

In Honey v Honey 1992 (3) SA 609 (W) it was held that the term ‘antenuptial contract’ is not synonymous with the term ‘duly registered antenuptial contract’. It was further held that an antenuptial contract is valid between the parties and inter partes regulates their matrimonial property system even if it is not registered. A duly registered antenuptial contract on the other hand regulates the parties’ matrimonial property system also as regards third parties.

The position under common law

In Ex Parte Spinazze and Another NNO 1985 (3) SA 650 (A), Corbett JA (as he then was) sketched the position under common law as follows: According to the law of Holland, no particular 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 inter partes, 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 Act reads as follows:

‘86 Antenuptial contracts to be registered

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 reads as follows:

‘87 Manner and time of registration of antenuptial contracts

(1) 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.

88 Postnuptial execution of antenuptial agreement

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 ss 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: ‘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 (See secs. 86 and 87 of Act 47 of 1937.)’

In the Spinazze matter it was held: ‘It is clear that in terms of s 86 of the Act an antenuptial contract not registered in the manner and within the time mentioned in s 87 is of no force or effect against any person who is not a party thereto. Having regard, however, to the common law and legislative background to the Act …, an antenuptial contract which has not been so registered is valid and effective as between the parties thereto.’

In Mathabathe v Mathabathe 1987 (3) SA 45 (W) it was held: ‘The existence of such informal antenuptial agreements is expressly recognised by the Legislature in s 88 of the Deeds Registries Act 1937. Its subject-matter is: “Postnuptial execution of antenuptial agreement”. If an antenuptial agreement … was arrived at between intending spouses, no matter how informally, the Court is empowered by the Legislature to authorise 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 an verbal antenuptial contract, on being satisfied that the alleged verbal agreement had been proven.

In the Spinazze matter it was held: ‘[I]t seems likely … though it is not necessary to decide this point and though ss 86 and 87 deal with written antenuptial contracts … that even a verbal antenuptial contract, if properly proved, would have such validity inter partes.’

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 a quo 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 a quo 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

No particular formalities are required for an antenuptial contract to be valid and enforceable between the parties thereto.

However, to also be effective against third parties it has to comply with the formalities required by s 87 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 inter partes.

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.

Magdaleen de Klerk BA (Hons) BProc (UFS) Dip Human Rights (UP) is an attorney at DDKK Attorneys Inc in Polokwane.

This article was first published in De Rebus in 2016 (Sept) DR 18.

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