Many of our more sophisticated citizens – especially business persons – elect to enter into an ante-nuptial contract (an “ANC”) prior to marriage. The intent usually is to separate their estates; to protect themselves against the insolvency of one of them and to prevent certain assets from falling into their communal estate (so preventing certain assets from being shared on divorce).
Only notaries may execute ANCs; the intent being that such contracts are a notch above ordinary contracts and require greater expertise, care and formality. Despite this, a practice has developed whereby non-notaries “take in” ANCs and have the contract executed remotely by a notary. There are many reasons for this practice; one of them is the scarcity of notaries.
In a recent case (Bath v Bath) the Supreme Court of Appeal struck down an ANC in which the parties had not properly defined their assets and had not allocated values to those assets. The result was that the contract was declared void and the parties, clearly contrary to their intent, were declared to have been married in community of property. Imagine the consternation of a spouse who had thought himself to be married out of community, having to share all (think family heirlooms or farms) with his now divorced spouse (the propriety of sharing, or not, is not considered here).
Ideally, parties to a marriage should be properly consulted and advised by a competent legal practitioner. Never consult only a secretary or a clerk regarding your ANC and make sure that you attend to preparing your ANC well in advance of your marriage day. Make sure that both you and your spouse understand the implications of what you are about to sign. Make sure that, if asked, you provide lists of assets which are properly identified and provide the real values thereof. Avoid declaring your property values as zero when this is not the case. Often parties elect to declare certain assets and the values thereof separately, so as not to make that disclosure a public document. If you elect to do this, follow up and make sure that you do this within the time limits provided.
To my knowledge no one has yet attempted to hold a notary (or the practitioner who “took in” an ANC) liable for losses incurred as a result of an ANC being struck down. I have little doubt that such a claim would be successful.