This surprising revelation came to mind, when we assisted two young South Africans who are now living permanently in England. They naturally wanted their own antenuptial contract, as they know it, to be registered in England; only to find out that there is no such thing as an Antenuptial contract in England and even more surprisingly, this type of document cannot be registered in any deeds office! English Notary Publics turned up their noses to our requests that they execute an equivalent of a South African antenuptial contract in the form of a notarial deed.
So what then is the English system that governs marriage and divorce? Amazingly, we have discovered that the British marital system is archaic and old fashioned. Currently the parties have to go to court to divorce each other. Under the current law, the courts will divide the assets based on what the court determines, is fair and what each of them needs!
So the erstwhile marriage partners have no control as to how their assets will be divided, should they divorce. However the English landscape is starting to change. Ever since the landmark Katrin Radmacher case which upheld a “pre-nup”, that was designed to protect the multi-million fortune of German paper industry heiress from her predatory husband, the use of “pre-nups” (outside of Parliamentary legislation) has become widespread.
The current status quo with regards to “pre-nups”, which are not governed by any legislation, is that the courts still have an overriding jurisdiction to reject the provisions of any “pre-nup”, if they are unfair.At the moment, English jurists are debating whether or not they should change the established marital regime and whether or not they should provide for a legislative framework to govern the use of what they call “pre-nups.”
For instance, Lady Hale, the Supreme Court Deputy President believes that “pre-nups” should not have any legal force, because they undermine marriage, and because there is an irreducible minimum which includes a couples’ s mutual duty to support one another and their children.
Judge Lord Wilson on the other hand, believes that “pre-nups” themselves, should be able to determine how the wealth is divided, instead of the courts determining the split. He is against what he believes is a patronising and inappropriately intrusive regime that overrides, what adults may have chosen in their marriage contract, after having taken legal advice.
So with regard to our young clients who are now happily married, they took advice from South African attorneys as well as British attorneys; with the result that they registered the South African antenuptial contract for their South African assets and also signed a “pre-nup”, (based on the South African accrual system antenuptial contract), in England, which everyone believes will be fair and will be ordained by the courts; should they ever wish to divorce.
Denoon Sampson is the Director at Denoon Sampson Ndlovu Inc, currently ranked the ‘number 1’ top performing conveyancer by First National Bank Limited. He has 30 years of experience as a conveyancer, specialising in the full spectrum of property-related law and is often called upon to give talks or contribute content on related matters.