VALIDITY OF ANTENUPTIAL CONTRACTS

One must be careful when drafting and signing an Antenuptial Contract. Aside from ensuring that the contents is all correct, one must also ensure that all the necessary provisions are contained therein to make the contract valid. The consequences of neglecting to do so may result in a marriage in community of property even though the parties had no intention of this at the time of their marriage.

Attorneys are often trusted with the task of drafting an Antenuptial Contract. This is a contract, which one signs to regulate the property regime of a marriage. If a couple does not sign, an Antenuptial Contract then the marital property regime will be that of in community of property. The presence of an Antenuptial Contract means that the marital property regime is that of out of community of property and the parties must specifically stipulate whether they would like the accrual system to apply to their marriage or not.

The importance of ensuring that all the necessary provisions are contained in the Antenuptial Contract to result in a valid contract was discussed in the 2014 Supreme Court of Appeal Case of B v B[1]. In this case, no values were stated in respect of any of the assets listed in the Antenuptial Contract and they were also not properly identified. In B v B the court stated that if the terms of a contract are so vague and incoherent as to be incapable of a sensible construction then the contract must be regarded as void for vagueness.[2]

According to Section 6(1) of the Matrimonial Property Act[3] ,a party to an intended marriage which does not, for the purpose of proof of the value of his or her estate at the time of the commencement of the marriage, declare the value in the contract, then he or she may do so within six months of the marriage in a statement attested to by a notary. If this is not done, according to Section 6(4) of the Marital Property Act, the net value of the estate of a spouse is then deemed to be nil at the time of the marriage. In effect, such a contract is valid but it will effectively render the marriage in community of property since nothing was excluded from the accrual.

However, if a contract is contradictory and incoherent in other respects then it cannot be seen as a valid contract since there is no certainty as to the meaning of the contract and what the parties seek to achieve. This means that the contract would not embody terms that would enable to court to give effect to the intention of the parties at the time the contract was concluded.

The result of such a contract is that the Antenuptial Contract would be void for vagueness and that the marital property regime would be the default position according to the Marital Property Act, which is in community of property.

Therefore, parties are encouraged to read their contracts thoroughly and ensure that they understand the terms thereof and that the contract embodies their intentions without any further explanations or evidence.

[1] (952/12) [2014] ZASCA 14 (24 March 2014).

[2] B v B (952/12) [2014] ZASCA 14 (24 March 2014) par 7.

[3] 88 of 1984.

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.

FAST DIVORCES IN CAPE TOWN

Divorces can be heartbreaking, painful, costly and time consuming when parties cannot reach a settlement between themselves.

However, all hope is not lost. Many young couples choose to get married in terms of an antenuptial contract, which states what each party declared to be excluded from the matrimonial estate and will remain each party’s exclusive property. If a couple does not have an antenuptial contract when they choose to go their separate ways, but already have a settlement in mind, whether it be with regard to property or children, they have the option of entering into a Consent Paper.

A Consent Paper states the terms on which the parties choose to divide their property or items that they have accrued over time. A Consent Paper should also deal with the maintenance, child care, medical care and any other issues that can arise with regards to minor children. A Consent Paper can be edited many times before it is endorsed by the Court, as long as both parties are in agreement. Once the parties are in agreement and summons has been served on the Defendant, the parties can obtain a final divorce order as soon as the following week. It is important to take note that where there are minor children involved, the Consent Paper must first be endorsed by the Family advocate in order to make sure that the arrangements regarding the care of such minor children are in line with the provisions of the Children’s Act. If there aren’t any issues with the arrangements as set out in the Consent Paper the Family advocate usually only takes about two days to endorse the Consent Paper.

A divorce order incorporating the Consent Paper may be obtained in the Regional Court or the High Court. The Cape Town High Court has jurisdiction over the Western Cape and is a speedy court when it comes to divorce matters that have been settled. The parties can choose their own divorce date in the Cape Town High Court provided that such date falls on a court date. This notice serves as booking for that date and as notice to the Defendant of such date.

One or both of the parties have to be present in court on the date as set out in the Notice of Set Down. However, it is advisable to use the services of an advocate in order to make the process as efficient and painfree as possible.

A divorce is never pleasant, but one should remember that once upon a time, the same parties that are asking for a divorce now, made promises to each other to take care of each other for better or for worse. Divorces don’t need to cost many years and tears, it can be finalised amicably and quickly. Even though the marriage itself was not meant to be, the memories will last forever.

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.