SchoemanLaw-Can Foreigners Enter Into An Antenuptial Contract In South Africa? If So, What Are The Requirements?
Today, many South Africans are leaving the country and often find love whilst abroad. It has also become quite common for South Africans to decide to come back home to tie the knot and make it official in the presence of their loved ones and close friends.
Since Antenuptial Contracts are essential documents that, under South African law, determines in which regime your marriage will fall under, a frequently asked question is whether a Foreigner can be a party to an Antenuptial Contract in South Africa.
Can a foreigner be a party to an Antenuptial in South Africa?
All persons getting married in South Africa are subject to the legislation of the Marriage Act 25 of 1961, as amended, which does not differentiate between South African Citizens and Foreigners with regards to the solemnization of a marriage in the Republic of South Africa. Intending bridal couples simply need to ensure compliance with the prescribed formalities.
Therefore, Foreigners may enter into an Antenuptial Contract in South Africa. However, in order for the Antenuptial Contract to be valid, it must comply with the requirements as set out in Section 87 of the Deeds Registries Act 47 of 1937, as amended.
The requirements can be summarised as follows:
1. The Contract must be signed by each Spouse or alternatively a duly appointed Agent.
2. The Contract must be signed in the presence of two competent witnesses and by a Notary Public.
3. The Contract once executed must be registered in a Deed's Registry within three months from the date of its execution.
Notary Declaration of No Identity Document Requirement
For non-citizens, The Deed's Registry also requires that that a Notary declare that the non-citizen is not in possession of a valid South African Identity Document.
If this requirement is not complied with, the Deed's Registry will reject the Antenuptial Contract.
Department of Home Affairs
Despite concluding a valid Antenuptial Contract, certain documents are also required by Department of Home Affairs in South Africa to execute a valid Marriage:
Department of Home Affairs in South Africa is extremely strict and on the day of the marriage, a Couple must present the following documents to the person officiating at the wedding:
a) Identity documents of each party;
b) If a foreign national is marrying a South African citizen, both is to present their valid passports as well as well as a completed BI-31 Form known as Declaration for the Purpose of Marriage, Letter of no impediment;
c) If a minor (a person under the age of 18 years) is getting married, the written consent of both parents/ legal guardian or the Commissioner of Child Welfare or a Judge should be submitted on Form DHA-32 as well. If the minors getting married are under the ages of 18 for boys or 15 for girls, the written consent from the Minister of Home Affairs will also be required;
d) If any of the persons getting married are divorced, then the final decree of divorce should be furnished;
e) If any of the persons getting married are widowed, the Deceased Spouse's Death Certificate must be submitted.
As seen above, it is extremely important for Foreigners/non-citizens to understand what the procedure is in South Africa to register an Antenuptial Contract and/or marriage and also to be aware of the requirements that need to be met in respect thereof.
SchoemanLaw Inc can assist with the drafting of all Antenuptial Contracts at a fixed and affordable rate.
t +27 (0) 21 425 5604 f +27 (0) 21 421 8913 email@example.com www.schoemanlaw.co.za
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