There is a common presumption that an Ante Nuptial Contract (hereinafter “ANC”) must be registered for it to be valid, and that it either has to be entered into prior to the marriage or 30 days after marriage. This presumption is however, incorrect as there can be an unregistered ANC, even a verbal contract between spouses.

The Court, in Honey v Honey 1992 (3) SA 609 (W), held that ‘Ante Nuptial contract’ is not synonymous with the term ‘duly registered Ante Nuptial contract’. The Court further held that an ANC is valid between the parties and inter partes regulates their matrimonial property system even if it is not registered. It is thus possible to enter into a valid verbal contract that will be binding between you and your intended spouse. However, the difficulty with a verbal ANC is that third parties, like creditors, will not be affected by it.

Say for example two parties conclude an ANC prior to the marriage, but it is not registered. It will be valid and binding between the two of them. Should the parties divorce, they will divorce as though they were married out of community of property in accordance with the ANC they concluded. If a creditor then puts a claim forward against the wife, and their ANC is not registered, the parties will be deemed to have been married in community of property and the creditor will accordingly institute the same claim against the Husband.

Even though it is allowed, a verbal ANC is very difficult to prove, as the only witness who can prove the state of affairs is the other spouse. The best option in this regard would be to have your ANC duly registered so as to ensure certainty and to allow you to circumvent claims from third parties.