A prenup must be implemented by an attorney who is a notary public. Both spouses must consult with the notary public beforehand and request an in-depth explanation of the various marital regimes, and the consequences that each has on divorce. It is encouraged for both spouses should obtain independent and separate legal advice before accepting and committing to the terms of an antenuptial contract. If a couple enters into a prenup, the marriage will automatically be subject to the accrual system unless the couple specifically excludes this from their contract.
One the prenup has been drawn up, both spouses and the notary public must sign it in duplicate before the marriage. Then, the prenup is forwarded to the Deeds Office for registration, in the area in which the spouses live. Registration must take place within three months of the date it was signed by the notary public. It is important to note that the contract must conform to specific standards and prescriptions in order for the Registrar of Deeds to accept and register it.
If the antenuptial contract is not signed or registered within the allotted time period, the couple can contact the High Court in terms of the Deeds Registries Act 47 of 1937 through a joint application to grant condonation for the late signing and/or registration of the prenup after the conclusion of the marriage.
If the couple decides not to sign a prenup and then change their mind too late, they risks having to sign a contract once they are married and may encounter complications and the expense of trying to execute and register a postnuptial contract.
The couple must submit the application within a reasonable time after it was discovered that the contract was not properly registered. Notice must also be given to the registrar of deeds of the applicant’s intention to bring such an application.
Registration of an antenuptial contract takes roughly two to three weeks, but this varies depending on the Deeds Office. After the contract is registered, it can take anywhere up to six months for the Deeds Office to scan the document into its data base and return the original to the notary. When the notary receives the original document, he/she will place a copy on file, and contact the couple to collect their original.
Notaries have legal entitlement to retain the document and any copies, until such time as the fee for their services has been paid in full.