Signed, Sealed, Sold! The Conveyancing & Notary Column 

I want to get married by Antenuptial Contract (ANC), who do I see?

Your first conversation would be with a notary. A notary is an attorney who has specialised in the field of certifying and authenticating documentation bound for outside South Africa’s borders; drafting and sealing documents where an extra duty of care is required to ensure the identity, capacity and authorisation of persons signing.

It therefore goes without saying that an important contract such as an antenuptial contract (ANC) requires due care in drafting and signing – the services of a notary.

Without an ANC, parties marry in community of property where the parties’ estates join and the parties are interdependent on the signature of the other in any contractual situation. One has to consent to the other’s contracting, and any assets owned prior to marriage will, by operation of law, become jointly owned. Profits and losses, including debt, are carried together.

A notary will assist in explaining South African marital regimes so that the parties are clear on what is being contracted to. An ANC is a contract between two parties before marriage, setting out the respective contributions and current asset value each party brings into the marriage. Signing an ANC provides for a marriage out of community of property. The contract will only come into effect, however, when the marriage ceremony has taken place – if there is no marriage, there is no contract.

Two forms of marriage out of community of property can be chosen: either with the inclusion of the accrual system – where all profits and assets accrued during the marriage will be split on dissolution using a specific formula; or without the accrual system – where each party enters the marriage with their own assets, accrues their own assets and will leave with their own assets and debts. It is key that the ANC is drafted with accuracy, and that any specific items to be excluded are cited accordingly, such as benefits in a business or trust, specific assets and so forth; inheritances, spousal donations and damages claims are automatic exclusions.

As long as the contract is signed before the marriage ceremony, all is in order, and it can be registered up to three months after signature in the Deeds Office. If not, the marriage will be in community of property, so ensure you use a notary who is well-versed in this field.

An ANC is not signed in anticipation of a divorce; it is designed to protect the parties’ independence. For example, if one spouse has a business and something goes wrong, only that spouse should be affected. Parties can contract independently, and if there is a genuine reason for dissolution, the litigation will be short rather than protracted, as the ANC sets out all aspects of a dissolution.

As mentioned previously, a notary carries an additional duty of care—a fiduciary duty of sorts—and, for this reason, may also be tasked with sealing and authenticating documents intended for use in foreign countries. A notary’s function is far more intricate than that of a commissioner of oaths. Notaries work with the High Courts and the Department of International Relations and Cooperation (DIRCO) to seal, bind, authenticate and notarially certify crucial documents for individuals emigrating, working overseas, applying for visas, or otherwise requiring their documentation to be formally verified.

Notaries are also involved in certain property transactions where notarisation is required, including servitudes, exclusive-use areas, rights of way and boundary encroachments.

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