Section 86 of the Deeds Registries Act 47 of 1937 provides than an antenuptial contract must be registered, failing which it will be of no force or effect as against any person who is not a party thereto.
In the case of S v S , the parties entered into an antenuptial contract before entering into their marriage in terms of which they intended on entering into a marriage out of community of property subject to the accrual system. When the parties divorced more than 20 years later, they discovered that their antenuptial contract was never registered. The parties then disputed whether the marriage was in community of property or out of community of property. The court held that the marriage was as per the intention of the parties, being out of community of property and subject to the accrual system. Whilst the antenuptial contract which had not been registered was of no force and effect against third parties, the antenuptial contract would however be valid and binding as between the parties.
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