Use text C bellow to answer question 3, remember to add authority as it appears on the text:
TEXT C:
(ii) Where there is an express antenuptial contract
A number of questions arise with regard to antenuptial contracts, which are best dealt with under separate heads.
(a) The essential validity of antenuptial contracts
Kahn submits, and most of the authorities—such as there are—support him, that the essential validity of an antenuptial contract is determined by the law of the husband’s domicile at marriage in the case of movables, and the lex situs of immovable. Yet there seems to be no good reason why the application of the husband’s domicile at marriage should not apply to movables and immovables, as is the case where there is no antenuptial contract. Why should the unitary principle not apply here too? It is thus
submitted that the husband’s lex domicilii at marriage determines the validity of an antenuptial contract affecting either movables or immovable. The validity of a choice of law clause in an antenuptial contract is a further question which arises in this regard. It seems clear that by testing essential validity by the husband’s domiciliary law at marriage, our law has rejected party autonomy in antenuptial contracts. Thus the validity of such clauses will be determined by the law of the matrimonial domicile. The authorities, however, hold that the matrimonial domicile governs only movables, and that immovables are governed by the lex situs. The submissions made immediately above in favour of the unitary principle apply mutatis mutandis. Although the authorities hold that a change of domicile will not affect the rights of the spouses, ie that the immutability principle applies, it is submitted that the better view is that this is a question for the law of the matrimonial domicile. If a change of domicile severely disadvantages a spouse, the overriding check of public policy may provide a remedy.
(b) Construction of the antenuptial contract
The old authorities appear—correctly, it is submitted—to support the view that the law of the
matrimonial domicile governs, whether movables or immovables are involved. Since the
purpose of construing the contract is to determine the spouses’ intentions, it follows that if it
can be shown that they intended some other law to be used for interpretation, that law
should be used.
There appears, in any event, to be a presumption in our law that an antenuptial contract
applies to all the spouses’ property, movable or immovable, wherever situated, and
whenever acquired.
(c) Capacity to enter an antenuptial contract
There is little authority on this question, but it seems to favour the lex domicilii for contracts
affecting movables, and the lex situs for immovables. This view is in accordance with
principle, and, since an antenuptial contract is hardly a commercial contract, the
considerations of commercial convenience which called for special rules in such cases do not
apply.
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Since capacity to marry, as we have seen, is tested by the lex loci contractus, we may
note that there will be cases in which a person may lack the capacity—through youth,
say—to enter an antenuptial contract, but be able to contract a valid marriage.
(d) Formalities to be observed in the execution of an antenuptial contract
In accordance with general principle, the common law lays down that the lex loci
contractus is the law to be used to test the formal validity of an antenuptial contract. It
has now been laid down by the Appellate Division in Ex parte Spinazze and Another NNO
that in addition compliance with the proper law of the antenuptial contract will suffice.
This clear common-law approach, however, is somewhat muddied by statute: s 87(2) of
the Deeds Registries Act 1937. This measure provides first, that where an antenuptial
contract is executed outside South Africa, the contract shall be attested either by a notary or
in compliance with the lex loci contractus but goes on to require that every such contract
must be registered in a South African deeds registry within six months of execution (or such
further period as may be allowed by the court).
On its face, the section apparently requires every antenuptial contract executed outside
South Africa to be so registered. Such registration is essential if the contract is to be valid
against third parties.
Naturally, this could cause considerable hardship. H and W while domiciled in, say,
Germany may execute an antenuptial contract and marry there without any thought of
leaving Germany. Five years later they may acquire a domicile in South Africa. Their contract
will not be valid against third parties, nor may it be registered under s 87(2).
Page 306
In the most recent decided cases on this section, Ex parte Van Borselen et uxor
and Ex parte Taylor et uxor, however, the section was interpreted as applying only to
cases where the husband was domiciled in South Africa at the time of marriage.
Moreover, where the husband is not a South African domiciliary registration is not required
for the contract to be recognized by our law. This interpretation is obviously sensible as
it avoids the hardship occasioned by the prima facie interpretation (see the example given
above). An early Appellate Division decision, Aspeling NO v Alexander, interpreting a
Transvaal statute similar to s 87(2), and overlooked in Ex parte Van Borselen and Ex parte
Taylor, gives some doubt whether this interpretation is correct. In that case it was held on a literal interpretation of the relevant legislation that an antenuptial contract executed
(and indeed registered) elsewhere excluding community of property was not effective to
protect the wife’s property against the creditors of the husband. It may be pointed out,
however, that the Transvaal legislation allowed for postnuptial registration of antenuptial
contracts at any time after execution, and not the mere six months afforded by s 87(2).
Consequently, it is submitted that Aspeling NO v Alexander should not be followed, but that
s 87(2) be interpreted as applying only to contracts in which the husband is at the time of
execution a South African domiciliary.
QUESTION 3
Mocktail is domiciled in South Africa. He married a person (Cocktail) who then was domiciled in Burundi and the marriage took place in that country as well. At the time of the marriage, Mocktail and Cocktail signed a standardised Hortors antenuptial contract (ANC) whereby all forms of sharing were excluded. Being head over heels in love Cocktail was not very bothered about the contents of the document, which she signed. As it turned out, the ANC was formally invalid ab initio because it did not comply with the legal rules of Burundi. Mocktail however registered the contract after 5 months’ delay in South Africa when they set foot ashore in this country to stay permanently. Not too long after their arrival, Mocktail died in an aeroplane crash. His Will stipulated that Cocktail would enjoy a usufruct, but that his children would inherit his massive 5 million rand estate. This came as a shock to Cocktail and she queries the outcome, because the basic Burundian matrimonial law would have given her half of the accumulated estate of her husband (in the absence of a valid ANC). Fully advise Cocktail on the formal validity of the ANC.
Based on the text, the formal validity of the antenuptial contract (ANC) signed by Mocktail and Cocktail in Burundi would be determined by the law of the matrimonial domicile. In this case, since Cocktail was domiciled in Burundi at the time of marriage, Burundian law would govern the formal validity of the ANC. As the contract did not comply with the legal rules of Burundi, it would be formally invalid ab initio.
Furthermore, the registration of the ANC in South Africa after the 5 months' delay would not validate the contract, as the formal validity is determined by the law of the matrimonial domicile at the time of marriage. Therefore, the ANC would remain invalid.
In conclusion, Cocktail's shock at the outcome of Mocktail's Will, which stipulated that she would only enjoy a usufruct while his children inherit the estate, is justified. In the absence of a valid ANC, the basic Burundian matrimonial law would typically entitle Cocktail to half of the accumulated estate of her husband, which differs from the outcome specified in the Will.