Under South African law, the valid execution of an Antenuptial Contract (ANC) is only the first step in securing a specific marital regime; the second, equally critical step is its timeous registration. Failing to register an ANC within the legally prescribed periods—three months if executed within South Africa or six months if executed abroad—carries significant legal and financial consequences.
The following details the specific consequences of failing to register an ANC timeously:
1. Automatic Reversion to the Default RegimeIf the ANC is not registered at the Deeds Office within the prescribed timeframe, it loses its legal force against the outside world. Consequently, the marriage is automatically deemed to be in community of property. This occurs even if the couple signed the document before a Notary Public and fully intended to be married out of community of property.
2. Loss of Protection Against Third Parties
An unregistered ANC is generally considered contractually binding only between the spouses themselves but is not enforceable against third parties, such as creditors. This creates a "split" legal status where, although the spouses may believe they have separate estates, the law treats them as having a single joint estate in all dealings with the public.
3. Exposure to "Liability Contagion"Because the couple is now effectively married in community of property, they face joint and several liability for all debts.
This lead to several risks:
• Shared Debt: Each spouse becomes 100% responsible for the other's debts and financial obligations, whether incurred before or during the marriage.
• Asset Vulnerability: Creditors of one spouse can attach and sell assets belonging to the other spouse to satisfy debts.• Insolvency Risks: If one spouse is declared insolvent, the entire joint estate is typically sequestrated, potentially leaving both partners without assets.
4. Administrative and Financial ImpedimentsFailing to register the contract on time removes the financial independence the couple initially sought. In a community of property marriage, written consent from the other spouse is required for major financial transactions, such as buying or selling immovable property or entering into credit agreements. Additionally, at the death of the first-dying spouse, the joint estate's liquidity is often frozen, which can cause immense hardship for the survivor until the estate is processed.
5. Costly Legal RectificationRectifying a failure to register an ANC is far more expensive than the initial registration. Couples have two primary legal paths, both of which require an application to the High Court:
• Section 88 of the Deeds Registries Act: This is a corrective tool used when a couple can prove they intended to marry out of community and had an agreement in place before the wedding. If granted, the court authorises the "postnuptial execution" of a contract that has retrospective effect to the date of the marriage.
• Section 21 of the Matrimonial Property Act: If the couple cannot prove a prior agreement, they must apply to change their regime. This process is prospective, meaning the new regime only takes effect from the date of registration, and all debts incurred between the wedding and registration remain joint responsibilities.The costs for these High Court applications can range significantly, with some sources estimating from R20,000.