Is an unregistered marriage contract binding on the parties?

In a case heard in the High Court of KwaZulu-Natal, (KS v MS [2015] JOL 33262 (KZD)), in a divorce action between the parties, two issues were separated and were now before the Court.

1. The first issue was whether the signing of a power of attorney by the parties and the initialling of a draft antenuptial contract constituted a recognisable antenuptial contract, and accordingly whether the parties were married in or out of community of property. 

2. If the parties were married out of community of property with the application of the accrual system, the question was whether the date for determination of any such accrual should be litis contestatio (the stage in litigation when the pleadings are closed) or the date of divorce. 

Prior to their marriage, the parties had signed a power of attorney that authorised an attorney to appear before a notary public and to execute an antenuptial contract on their behalf. Unknown to the parties, the antenuptial contract was not executed and registered in the deeds office. The plaintiff therefore contended that the marriage was in community of property.

Held that although the antenuptial contract was not registered, the plaintiff conceded that prior to the marriage, the parties agreed that their marriage would be governed by an antenuptial contract. Although an antenuptial contract which has not been registered in accordance with the provisions of section 87 of the Deeds Registries Act 47 of 1937 is of no force or effect as against any person who is not a party thereto, it would be valid and binding as between the parties because the unregistered contract would reflect the common intention of the parties at the time the contract was entered into. The Court therefore found that an informal antenuptial contract existed in this case.

The Court then turned to consider the date for determination of accrual. The practical effect of litis contestatio being the date of determination of accrual is that the trial is expedited and the temptation to squander assets is limited. It was held that the date for determination of accrual was at litis contestatio.