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Section 88 - Practical ramifications

10 August 2017

A challenge facing practitioners is the application of Section 88 of the Deeds Registries Act 47 of 1937(hereinafter referred to as the Act) vis a vis the provisions of section 21 of the Matrimonial Property Act 88 of 1984. Section 88 of the Act provides that notwithstanding the provisions of sections eighty-six and eighty-seven of the Act the court may, subject to such conditions as it may deem desirable, authorize 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 may order the registration, within a specified period, of any contract so executed.

However, in practice uncertainty prevails on the actual interpretation and implementation of such applications. Notices of motion are often served on the Registrar of Deeds to provide reports to court for postnuptial execution of an already executed antenuptial contract, which contract would be attached to notice of motion as annexures. These annexed antenuptial contracts are executed after the marriage, albeit the marriage being in community of property.

Section 88 of the Act, in contrast to Section 21 of the Matrimonial Property Act, does not require execution of antenuptial contract, but the execution of a postnuptial contract having the effect of an antenuptial contract. Attached to the notice of motion should be postnuptial contract not an antenuptial contract.

This confusion arises, in my opinion, on the use and interpretation of words if the terms thereof were agreed upon between the intended spouses before the marriage in section 88. The interpretation should be that instead of executing an antenuptial contract after conclusion of the marriage, parties should execute a postnuptial contract as envisaged in section 88. In all notices of motion served on the registrar of deeds with applications in terms of Section 88, notaries should attach a postnuptial contract not an antenuptial contract.

The effect of a court order in terms of section 88 is that although executed and registered after conclusion of the marriage, it will have been effective from the date of marriage i.e. it has retrospective affect as with a normal Antenuptial Contract.

The main difference between section 88 and section 21 is the effective date of the contracts. Section 21 is effective from date of registration and not retrospective

It should be noted that in both instances the notices of motion should be served on the Registrar of Deeds to prepare a report to court advising court on the registrability of the said contracts.

Adv Audrey Gwangwa

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