In a previous article published November 2016 the consequences of Marriage in and out of community of property as well as the importance of registering an Antenuptial Contract were discussed.

Should you wish to get married out of Community of property, the Antenuptial contract must be signed before a Notary Public prior to the marriage taking place and registered within three months from the date of the execution.

Now what happens in a scenario where clients who married 20 years ago believing they were married out of community when in fact the Antenuptual was never properly registered in the Deeds Office?  This is exactly what happened in the case of Smitchz v Smitchz (2015) 3 All SA 85 KZD.

While it was the intention of the parties to be married out of community of property, subject to the system of accrual, the Antenuptial contract was never registered in the Deeds Office even though the parties signed a Power of Attorney authorising the Notary Public to execute and tend to registration of same. The plaintiff held that they are accordingly married in community of property, while the defendant argued that this was never their intent.

Section 86 of the Deeds Registries Act 47 of 1937 provides that an Antenuptial contract must be registered, failing which it will have no force or effect as against any person that is not a party thereto.

In this case the High Court held that the marriage was, as per the intent of the parties out of community of property, as there existed an informal agreement between them due to their common intent at the time of signing the Power of Attorney, but the Court held further that this informal agreement was of no force or effect against any person not a party thereto.

What did this effectively mean? Well, in this particular circumstance while it would not have been possible for either of the parties to claim against each other in a view of being in community of property to each other, they lacked the protections the law puts in place for couples married out of community of property and should either of them have had any outside creditors, those creditors during the subsistence of the marriage would have enjoyed full right to approach either of the parties for payment, regardless of who incurred the debt.

It is therefore imperative to understand the legal consequences of each marriage regime and to instruct a reputable and competent Notary Public should you wish to be married Out of Community of Property.

Authored by Tania Hancke
ESI Attorneys

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