In matrimonial Property law, if a couple gets married without first entering an Antenuptial Contract (ANC), their marriage is automatically deemed in community of property. This means that both spouses’ assets and liabilities are merged into a single joint estate with equal responsibility. 

If spouses wish to be married out of community of property, whether with or without the accrual system, they must sign an Antenuptial Contract before the marriage takes place. If this step was overlooked, the couple cannot simply change their marital regime afterwards without legal intervention. In such cases, they would need to apply to court to amend their matrimonial property system, a process that can be both costly and time-consuming.

Even where an Antenuptial Contract has been properly signed before the wedding, it must still be registered to be fully effective against third parties. The law requires that the contract be lodged and registered in a Deeds Office within three months of its execution. This requirement, set out in the Deeds Registries Act 47 of 1937, ensures that the contract is enforceable against third parties. Until registration takes place, the notary must submit it for examination and formal recording in the Deeds Office.

Notably, in the period between signing and registration, the law effectively places you in a kind of “legal limbo.” On paper, you intended to be married out of community of property, but to the rest of the world, that intention is not yet enforceable.

This becomes critical during property transfer. Conveyancers are required to confirm your marital status and regime before registering ownership in the Deeds Office. If your ANC has not been registered, the Deeds Office will treat you as married in community of property when dealing with third parties. That means the property may need to be registered in both spouses’ names, or at the very least, both spouses must consent to the transaction. If you intended to keep estates separate, this can immediately complicate the transfer or even delay registration.

The same issue often arises more sharply when applying for a home loan. Banks rely heavily on your matrimonial property system to assess risk and structure the bond. If your ANC is not registered, the bank will treat you as if you are married in community of property, regardless of what you agreed privately. This can lead to both spouses being required to sign the bond and become jointly liable for the debt. In some cases, a bank may even decline or restructure a loan if the legal position is unclear, because, from its perspective, the ANC does not yet exist.

Another risk is creditor exposure, because an unregistered ANC is not enforceable against third parties; any debts incurred during this period could potentially be claimed against the joint estate. So, if a property is being financed and something goes wrong financially, creditors are not bound by your unregistered agreement; they can act as though you are married in community of property.

In conclusion, registration is what gives your ANC its external legal power. Without it, your marital regime cannot be relied on in property transfers or bond registrations. The Deeds Office and financial institutions operate strictly on what is officially recorded, not on what was privately agreed. That is why the notary’s role does not end at drafting the contract; the critical final step is ensuring it is properly lodged and registered within the prescribed time.

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