Getting married is a life-changing decision, and while most couples focus on the excitement of the wedding day, it’s equally important to think about how you’ll handle your financial future as a married couple. One of the critical steps in this process is deciding whether to sign a marriage contract, also known as an antenuptial contract (ANC), in South Africa.
If you choose to get married out of community of property, with or without accrual, a marriage contract is essential. But when exactly should this contract be concluded and registered? Let’s break down the timeline and the legal requirements to ensure your marriage contract is valid and enforceable.
1. When Should a Marriage Contract Be Signed?
In South Africa, a marriage contract must be signed before the couple gets married. This is a crucial point, as failing to sign the contract before the wedding day means the couple will automatically be married in community of property, which is the default marital regime. Being married in community of property means that all assets and liabilities are shared equally between both spouses.
Therefore, if you wish to be married out of community of property, with or without the accrual system, the contract must be drafted, signed, and notarized before you say "I do."
2. How Long Before the Wedding Should You Sign the Contract?
While there is no set rule about how long before the wedding the contract must be signed, it’s recommended to finalize it at least two to three months before your wedding day. This gives both you and your partner ample time to consult with a notary (a specially qualified attorney), discuss your options, and ensure the contract accurately reflects your needs and intentions.
This period also allows for any necessary adjustments and avoids last-minute stress leading up to the wedding. The contract must be carefully drafted, taking into account both parties’ financial circumstances and wishes regarding the accrual system (if applicable), inheritance, and other legal matters. Starting the process early ensures that you have time to make informed decisions.
3. What Happens If You Don’t Sign a Marriage Contract in Time?
If you fail to sign a marriage contract before the wedding, your marriage will automatically default to being in community of property. This means that, by law, all assets and debts—whether acquired before or during the marriage—are jointly owned. While it’s possible to apply for a postnuptial agreement to change the marital regime after the wedding, this is a lengthy and costly process that requires a court application.
The postnuptial process involves both parties agreeing to the change, notifying creditors, and presenting a formal application to the High Court. This can be avoided by simply ensuring that the antenuptial contract is signed before the wedding day.
4. Who Can Draft and Sign a Marriage Contract?
In South Africa, a marriage contract must be drafted and notarized by a qualified notary public, which is a specialized type of attorney. The notary will work with both spouses to ensure that the terms of the contract are clear, legally binding, and in line with their wishes.
Once the contract is drafted, both parties must sign it in the presence of the notary, who will also sign and notarize the document. This step is vital to ensure that the contract holds legal weight.
5. When Should the Contract Be Registered?
After the contract has been signed and notarized, it must be registered with the Deeds Office within three months from the date of signing. Failing to register the contract within this time frame could render it invalid.
The Deeds Office is responsible for keeping a public record of all marriage contracts. Once the contract is registered, it becomes a legally binding document that can be referenced in the future, particularly in cases of divorce or death.
The registration process usually takes a few weeks, but it’s important to start this step immediately after signing to avoid missing the deadline. Your notary public will typically handle the registration process on your behalf, ensuring that all the necessary paperwork is submitted correctly.
6. What Happens After the Contract is Registered?
Once the contract is registered at the Deeds Office, you and your spouse will be issued a copy of the registered contract, which you should keep for your records. This document will serve as proof of the terms of your marriage, outlining the financial arrangements you’ve chosen.
In the event of a divorce, death, or if you need to prove your marital status for legal purposes, the registered contract will be referenced. It’s important to note that the marriage contract remains in place for the duration of the marriage, and it can only be altered through a formal legal process.
Conclusion: Early Planning for a Secure Future
Signing and registering a marriage contract before your wedding is essential if you want to be married out of community of property. It provides both spouses with legal and financial security, ensuring that their personal assets and liabilities are protected throughout the marriage.
By signing your contract early and working with a qualified notary public, you can avoid the default marriage regime and tailor your financial arrangements to suit your unique circumstances. Starting the process well in advance of your wedding allows for careful planning, avoiding last-minute stress, and ensuring that your marriage begins with a solid foundation of legal and financial clarity.
In short, a marriage contract is an investment in your future, offering both peace of mind and protection as you embark on this new chapter together.