Is an unregistered ANC enforceable?

In South Africa, marriages are governed by one of two marital regimes:

• In community of property; or
• Out of community of property

Getting married in community of property requires the couple to do precisely nothing. They just get hitched and ride off into the sunset. South African law provides that when a couple gets married the marriage is automatically presumed to be in community of property – unless the couple sign an AnteNuptial Contract prior to getting married.

And so it is that in between the mad, exhilarating, often frustrating, always interesting wedding preparations, couples invariably find the opportunity to put a sensible head upon their shoulders and get an ANC signed. What they may not realise, however, is that the mere signing of the agreement is not the end of it. From there their ANC needs to be notarised and registered. This process can take a few months to complete, by which time the wedding, complete with bridezilla tantrums, in-law hostilities, witty best-man speech, romantic first-dance, and whirlwind honeymoon are all but forgotten.

Understandably, from the moment the ANC is signed most couples forget about it and get on with their lives, expecting their attorney to take care of whatever it is they have to take care of. That is, after all, why he was paid the big bucks. But what if he doesn’t do what he is meant to do? What if, after the ANC is signed, the attorney simply forgets to register the ANC? What marital regime governs the couple’s marriage?

This matter was addressed in the 2015 case of S v S, where the courts once again stressed the importance of the sanctity of contract.

In this case, the couple gave their attorney power of attorney to sign and register an ANC for them. They also signed the draft ante-nuptial contract. It was thus patently clear that the parties fully intended that their marriage be out of community of property, with accrual. More than two decades later their marriage came to an acrimonious end. It was only at this point that it came to light that the ANC had never been registered. The wife contended that, in light of this oversight, the marriage was in community of property (entitling her to half the joint estate). The husband, meanwhile, contended that the marriage was out of community of property by virtue of their signing of the ANC (thereby reducing his soon-to-be-ex-wife’s portion of the estate). The High Court held that for purpose of the divorce proceedings, the marriage was out of community of property. Ie. the ANC supported the husband’s contention.

The effect of a signed but unregistered ANC is therefore the following:

• Because the ANC had been signed by both parties, it was clear that they both intended for their marriage to be out of community of property. The ANC was therefore valid and binding as between the husband and wife.
• However – because the ANC had not been registered, it would not be enforceable against third parties. Thus, for the duration of their marriage, third parties could have treated them as married in community of property.

What this case highlights is that the courts remain committed to preserving the sanctity of contract. Lawful contracts that reflect the common intention of the parties at the time of signature will generally be upheld and enforced by the courts. So be careful what you sign.

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.