Question

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 airplane 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. refer to relevant legislation

Answer 1

[AI-generated answer — Bot GPT 3.5]

In this case, the antenuptial contract (ANC) signed by Mocktail and Cocktail in Burundi was formally invalid ab initio because it did not comply with the legal rules of Burundi. However, Mocktail registered the contract in South Africa after a 5 months' delay.

In South Africa, the formal validity of an ANC is governed by the Matrimonial Property Act 88 of 1984. Section 7(1) of the Act sets out the requirements for a valid ANC, including that it must be signed by both parties in the presence of a notary public and two competent witnesses. It must also be registered in the Deeds Office within 3 months of the date of signature.

In this case, since the ANC was not signed in accordance with the legal requirements of Burundi, it would not be considered valid in South Africa. Therefore, the default matrimonial property regime of in-community of property would apply. This means that Cocktail would be entitled to half of the accumulated estate of Mocktail, instead of just a usufruct as stipulated in his Will.

Cocktail should consult with a qualified lawyer in South Africa to fully understand her rights and options in this situation.