Congratulations! Wedding bells will be ringing in the near future and you did your homework well. You already gave instruction to your attorney to draft and register your antenuptial agreement. But be aware of certain pitfalls that may render your antenuptial agreement invalid and therefore resulting in a marriage in community of property.
Section 87 Act 88 of 1984 stipulates that an antenuptial agreement must be signed in front of a notary and two competent witnesses. You can either sign personally in front of the notary or you can sign a power of attorney nominating an agent, usually your attorney, to appear and sign in front of the notary. The notary will then notarially execute the antenuptial agreement and the agreement must be registered in the deeds office. The date on which the notarial execution takes place is crucial. Firstly, this date has to be prior to your date of marriage and secondly, the contract must be registered within three months in the deeds office. If the contract is notarially executed after your date of marriage or, if the contract is not registered within three months, then it will be invalid and you are automatically married in community of property.
It is always best to appear personally in front of the notary to sign your agreement. This way you have firsthand knowledge of the date the antenuptial contract was signed and notarially executed. You can therefore make a mental note to remind follow up with your notary should the three month period be nearing its end and you have not yet received confirmation of registration.
There is a risk to nominate your attorney by way of a special power of attorney to appear on your behalf in front of the notary. The reason being, is that you can sign the power of attorney in time, before your date of marriage, but the attorney may only appear in front of the notary after the date of your marriage.
Most of the time you will not even know that your antenuptial agreement is invalid. This may only come to light later, when you purchase a property or register a bond. Moreover, this could have significant repercussions to you, your spouse and your dependents, both financially and personally, such as in the event of sequestration, divorce or death.
Take the necessary precaution and avoid being surprised later in life by the consequences of a marriage in community of property.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)