087 822 1639
Skip to content 087 822 1639
What late registration, non-registration and postnuptial registration can mean in South Africa
You signed an antenuptial contract before getting married — but years later you discover that it was never registered in the Deeds Office.
Are you now married in community of property?
The answer is not always as simple as “yes” or “no”.
South African law distinguishes between the agreement between the spouses, the formal registration requirements of the Deeds Registries Act 47 of 1937, and the effect of that agreement on creditors and other third parties.
The consequences can also differ depending on whether:
Those situations should not be treated as though they are legally identical.
This article provides general information about South African law. It does not constitute legal advice and does not predict the outcome of an individual matter.
| Question | General position |
Must an ANC be registered? | Yes, if it is to have effect against third parties. |
How long is allowed for registration? | An ANC executed in South Africa must generally be registered within three months after execution. If executed outside South Africa, the statutory period is six months. A court may extend either period. |
Is an unregistered ANC automatically meaningless? | No. Depending on the facts, an informal or unregistered ANC may still be valid and enforceable between the spouses. |
Is it binding on creditors and third parties? | Generally not if the statutory registration requirements were not met. |
Can late registration be authorised? | In appropriate cases, yes. |
What if the spouses agreed before marriage but did not complete the formal ANC correctly? | Section 88 of the Deeds Registries Act may become relevant. |
Can spouses simply sign a new ANC after marriage? | No. A later change to the matrimonial property system generally requires a court application under section 21 of the Matrimonial Property Act. |
Should the problem be ignored until divorce? | No. Registration defects can affect property rights, creditors, estate planning and divorce. |
An antenuptial contract is not merely a private document between two people. It can determine whether the marriage is in community of property, out of community of property with accrual, or out of community of property without accrual.
It can also regulate excluded assets, commencement values and other aspects of the spouses’ matrimonial property relationship.
Registration performs an important public function. Section 86 of the Deeds Registries Act provides that an antenuptial contract that has not been registered in the manner and within the time contemplated by section 87 is of no force or effect against a person who is not a party to it.
The distinction between the spouses themselves and third parties is therefore fundamental.
Section 87(1) of the Deeds Registries Act provides that an antenuptial contract executed in South Africa must be attested by a notary and registered in a deeds registry within three months after execution, unless a court allows an extended period on application.
Section 87(2) provides a six-month period for an antenuptial contract executed outside South Africa.
Such a contract must be attested by a notary or otherwise entered into in accordance with the law of the place of execution, and must be registered in a South African deeds registry within six months after execution unless a court allows an extended period.
The practical point is simple: signing an ANC is not the final step. The notarial and registration process must also be completed properly.
Late registration does not necessarily mean that the agreement simply disappears.
The consequences depend on what happened, what was agreed, whether the ANC was properly executed, whether a court extension or other relief is available, and whether the rights of third parties have intervened.
The Deeds Registries Act expressly allows a court to extend the statutory registration period in appropriate circumstances.
In Deutscher Genossenschafts- und Raiffeisenverband e.V. v Sejake and Another (54837/2020) [2023] ZAGPPHC 416, the court considered an ANC that had been signed before the marriage but registered after the three-month period.
The judgment illustrates why the timing of execution, registration and any necessary court authorisation matters, particularly where a third-party creditor is involved.
Late registration should therefore not be treated as a mere administrative technicality.
Not necessarily.
South African law recognises an important distinction between enforceability between the spouses and enforceability against third parties.
In K.J.S v M.J.S (14396/2010) [2015] ZAKZDHC 43; 2016 (1) SA 64 (KZD), the court confirmed that an antenuptial agreement that was not registered in accordance with sections 86 and 87 could still be effective between the spouses, while lacking force against persons who were not parties to it.
The same inter partes principle appears in T.H v C.J.H (975/2012) [2014] ZAECGHC 52 and Nedbank Limited v Lotter (50216/13) [2014] ZAGPPHC 795.
The important point is therefore that “unregistered” does not automatically mean “non-existent”. But it also does not mean that a registration failure can safely be ignored.
Not necessarily.
South African law recognises an important distinction between enforceability between the spouses and enforceability against third parties.
In K.J.S v M.J.S (14396/2010) [2015] ZAKZDHC 43; 2016 (1) SA 64 (KZD), the court confirmed that an antenuptial agreement that was not registered in accordance with sections 86 and 87 could still be effective between the spouses, while lacking force against persons who were not parties to it.
The same inter partes principle appears in T.H v C.J.H (975/2012) [2014] ZAECGHC 52 and Nedbank Limited v Lotter (50216/13) [2014] ZAGPPHC 795.
The important point is therefore that “unregistered” does not automatically mean “non-existent”. But it also does not mean that a registration failure can safely be ignored.
If an informal or unregistered ANC is proved and enforceable between the spouses, it may regulate their proprietary relationship as between themselves.
For example, the parties may have intended and agreed that community of property was excluded, that the accrual system applied or was excluded, or that specified assets would be excluded from accrual.
Whether those terms can be enforced depends on the actual agreement, the evidence and the applicable law.
A court will not simply assume the existence or terms of an informal ANC because one spouse says that this was their intention. The agreement must be proved.
This is where registration becomes especially important. Section 86 provides that an ANC not registered in accordance with the Act has no force or effect against a person who is not a party to it.
This can create a difficult situation. As between the spouses, a proved antenuptial agreement may regulate their proprietary relationship. But creditors and other third parties may not be bound by that private arrangement.
Nedbank v Lotter illustrates the practical importance of this distinction in a dispute involving a bank and an unregistered ANC.
Registration therefore serves more than an administrative purpose: it gives public notice of the matrimonial property arrangement and protects the position against third parties.
Yes, in appropriate circumstances. Section 87 allows the statutory registration period to be extended by a court on application.
The circumstances and procedural route will depend on the problem that needs to be corrected.
A case where a notarial ANC was properly executed but not registered timeously is not necessarily the same as a case where the spouses agreed on a matrimonial property arrangement before marriage but never properly executed the notarial contract.
That distinction leads to section 88.
Sometimes the problem goes further than late registration.
The intended spouses may have signed instructions or a draft, agreed orally on a matrimonial property system, signed documents that were never properly notarised, believed the ANC had been completed when it had not, or agreed on the terms before marriage but failed to complete the formal process.
In those circumstances, the issue is no longer simply whether a properly executed ANC was registered late.
The question becomes whether there was a genuine antenuptial agreement before marriage and whether the court can authorise its postnuptial formalisation.
Section 88 of the Deeds Registries Act allows a court, subject to conditions it considers appropriate, to authorise postnuptial execution of a notarial contract having the effect of an antenuptial contract where the terms were agreed between the intended spouses before marriage.
The court may also order registration within a specified period.
The section is therefore directed at formalising an agreement that already existed before the marriage. It is not a mechanism for spouses to invent a new matrimonial property system after marriage.
T.H v C.J.H confirms that section 88 recognises informal antenuptial agreements and allows postnuptial execution and registration where the parties had agreed the terms before marriage.
Spouses who are already married cannot ordinarily change their matrimonial property regime merely by signing a new private agreement or calling it an ANC.
Section 21 of the Matrimonial Property Act 88 of 1984 allows spouses to apply jointly to court for leave to change the matrimonial property system applying to their marriage.
The court must be satisfied that there are sound reasons for the proposed change, sufficient notice has been given to creditors and no other person will be prejudiced.
If those requirements are met, the court may authorise a notarial contract regulating their future matrimonial property system.
The Constitutional Court reinforced the importance of this distinction in VVC v JRM and Others (CCT202/24) [2026] ZACC 2. In that matter, an ANC concluded after an existing customary marriage could not validly alter the matrimonial property consequences without the required judicial process.
The judgment emphasises that a postnuptial change is not achieved simply by labelling a later notarial document an “antenuptial contract”.
In short: section 88 concerns formalising terms agreed before marriage; section 21 concerns changing an existing matrimonial property system after marriage.
An unregistered or defective ANC can become highly contentious during divorce. One spouse may argue that the parties agreed to be married out of community of property, while the other may contend that no enforceable antenuptial agreement was proved.
There may also be disagreement about whether an agreement was actually concluded, what its terms were, whether accrual applied, whether particular assets were excluded, whether commencement values were agreed, and whether third-party rights have intervened.
These disputes can materially affect the financial outcome of the divorce. A registration defect should therefore be investigated early rather than discovered only once settlement negotiations or trial preparation are already advanced.
The fact that South African law recognises informal antenuptial agreements does not mean they are easy to prove. Evidence may include:
The precise evidence required depends on the dispute. Where the existence or terms of the agreement are contested, contemporaneous documentation can be especially important.
If there is uncertainty, the first step is usually to verify the registration position rather than rely on memory. Relevant documents may include:
A document signed before marriage is not necessarily proof that registration took place. The execution date and registration details should both be checked.
Any one of these should justify a proper legal review.
That belief may be relevant, but it does not automatically cure a statutory defect.
In some cases, both spouses may have conducted their financial affairs for years on the basis that they were married out of community of property. That conduct can be relevant when establishing whether an agreement existed between them.
But the rights of third parties and the formal requirements of the Deeds Registries Act remain separate considerations.
A registration problem can affect more than divorce. It may have consequences for property ownership, creditors, business interests, estate planning, insolvency, deceased estates, asset protection, accrual calculations and the enforceability of exclusions.
The longer the issue remains unresolved, the greater the possibility that later transactions will have been entered into on an incorrect assumption about the spouses’ matrimonial property regime. That can make correction more difficult.
Legal advice should be obtained where:
The appropriate remedy depends on exactly what went wrong.
Martin Vermaak Attorneys Inc. advises on South African matrimonial property disputes involving antenuptial contracts, accrual, excluded assets and defective or disputed matrimonial property arrangements.
Where an ANC was not registered, was registered late, was never properly formalised or is disputed during divorce, the first step is to establish precisely what was agreed, what documents exist, whether third-party rights are affected and which statutory remedy may be available.
Obtaining advice early can help determine whether the problem involves late registration, an informal antenuptial agreement, a possible section 88 application, a section 21 application or a broader matrimonial property dispute.
For related guidance, see MVA’s articles on Antenuptial Contracts South Africa, How to Change Your Matrimonial Property Regime After Marriage and Can You Sign an ANC After a Customary Marriage?.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
Copyright © 2026 Martin Vermaak Attorneys. All rights reserved.
Terms of Use Privacy Policy
BannerText_Seraphinite Accelerator