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Section 88 of the DRA

7 September 2017

Section 88 of the Deeds Registries Act 47 of 1937 – A practical guide (Postnuptial contracts)

Confusion still exists amongst family practitioners seeking to apply the provisions of section 88 of the Deeds Registries Act 47 of 1937 (“the Act”). The section provides for a postnuptial execution of a notarial contract, having the effect of an antenuptial contract, if the terms thereof were agreed upon between the intended spouses before the marriage, and the court may order the registration, within a specified period, of any such contract.

It is important to note that there are three distinct features in section 88:

  1. The postnuptial execution.
  2. A notarial contract, the terms of which have been agreed upon by the intended spouses before marriage.
  3. The notarial contract has the effect of an antenuptial contract.

Practitioners in drafting notices of motion should answer the following questions:

  • Is the notice of motion specifically praying for an order in terms of section 88 of the Act and not section 21 of Matrimonial Property Act 88 of 1984?
  • Are supporting documents e.g. affidavits by parties supporting such prayer?
  • Is the said proposed postnuptial contract drafted in terms of said section 88 of the Act?
  • Are there any annexed supporting document/s which can prove that the parties intended to get married out of community of property, the terms of which are contained in the said postnuptial contract?

The following documents can serve as proof that the terms have been agreed by the parties before the marriage:

  • An executed antenuptial contract which was executed after marriage by the notary but signed by the parties and witnesses (some will even be registered in which cases section 89 of the Act is also applicable).
  • A properly executed antenuptial contract but the time period for registration of (3) months after execution has lapsed and the parties don’t wish to pray for section 87 of the Act. The attention of the court might be drawn though to the relief available in section 87 the Act.
  • A proper signed power of attorney authorizing the agent to appear before the notary and execute an antenuptial contract of which the draft is annexed to the power of attorney.

It should be noted that there should not be a prayer for division of the parties’ joint estate, as this is the case in section 21 of notices of motion in the Matrimonial Property Act 88 of 1974. The reason is that upon granting of the order, the contract will have the effect of an antenuptial contract, THUS the status of the parties’ estates will be as they were before the said marriage within a specified period, of any such a contract.

Adv. Audrey Gwangwa

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