CAN AN ANTE NUPTIAL CONTRACT BE AN OBSTACLE?

 

CAN AN ANTE NUPTIAL CONTRACT BE AN OBSTACLE?

I have, on two occasions in my long legal career, encountered situations where young couples were so certain of their future marriages that they signed ante nuptial contracts months before the intended date of the marriage – and because the contract must be registered no later than two months after execution, that requirement was concluded – and then the marriages did not proceed and the arrangements were cancelled. And then considering the multiple factors involved, they have ante nuptial contracts that lead nowhere. I have witnessed marriages of six months and less. These things do happen!

Had they married and subsequently divorced, they would have a divorce order to prove the end of the contract.

But now they have no official document to prove any such thing because the contract doesn’t have any force until they marry. Yet it certainly does indicate (and thus raises a presumption) a marriage and since the parties will vehemently deny that, it calls for further examination by anyone requiring the truth for legal reasons. They now have to prove a negative – and there is a legal presumption against having to do such a thing, except in tax cases.

However, there is nothing to prevent one or both of them from executing some form of document to record that no marriage took place. I would however recommend that if one took such a route, since the original contract was executed notarially, this agreement or unilateral declaration should be similarly executed and registered at the Deeds Office, as in the case of any marriage contract, under the “H” code. And it should of course contain a cross reference to the ANC, and that document should be endorsed with a cross reference to this document.

The juridical nature of this document would be the same as that of the cancellation of a personal servitude.

Such a document would eliminate doubtsvof the marital status (and therefore the contractual and property rights) of the parties, as suggested by the contract, without further requirements. And a succinct reference to it could be retained in the file of any matter relating to that party/those parties.

I don’t know whether such a contract could be registered under our law as it stands, but perhaps it should be considered.