Page:An introduction to Roman-Dutch law.djvu/124

 Rh 84 THE LAW OF PERSONS Registra- tion of ante-nup- tial con- tracts. Who maybe parties. Such con- tracts serve two purposes. although, he adds, ' registration in Court is not required, since the law on this point as enacted by the placaat of July 30, 1624, has never been observed in practice.' ^ In the practice of Cape Colony writing was invariably employed, and by Act 21 of 1875, sec. 2, an ante-nuptial contract requires to be executed before a notary and two witnesses (underhand documents not being entitled to registration) and registered in the office of the Registrar of Deeds,^ and a duplicate or notarial copy of the contract must be left in the office of the Registrar of Deeds for general information. It is to be noted, however, that the absence of registration only affects the vaMdity of the contract as regards creditors. An unregistered contract cannot operate to their prejudice so as to deprive them of any rights which they would have in the absence of ante- nuptial contract by the common law. As regards the parties to the contract, however, and persons claiming through them, as well as others taking a benefit under it, the contract holds good in the absence of registration and even (semble) though not reduced to writing.^ In this connexion it should be observed that the parties to an ante-nuptial contract may be not only the spouses but also any relatives or others who may be disposed to exercise any liberality towards them.* In fact the con- tract often serves a double purpose : first, its obvious one. Linden, as also de Haas in his note to Cens. For. {ubi sup.). Van der Keessel {ubi sup.) and Hoola van Nooten (vol. i, p. 442) do not consider writing indispensable. But satisfactory proof, and therefore the presence, at the least, of competent witnesses is necessary, if an ante-nuptial contract is to affect creditors. Voet, 23. 4. 3-4 ; V. d. K. ubi sup. ; Holl. Cons., vol. iv, no. 35. Groen. de leg. abr. ad Cod. 5. 12. 1, ult. ; Voet, 23. 4. 4 and 60. This statute did not, however, require registration in all cases, but only when tte ante-nuptial contract created a f.c. or prohibition of alien- ation of immovable property. In Brit. Gui. an ante-nuptial contract need not be notarially executed [G.]. ^ At the Cape the combined effect of Act 21 of 1875, sec. 7, and of Ord. 27 of 1846, sec. 1, is that ante-nuptial contracts executed in the Cape Province must be registered within a certain specified time of execution, but not necessarily before marriage. See S. A. L. J. (1912), vol. xxix, p. 39. Voet, 23. 4. 2 and 4 ; 1 Maasdorp, p. 49. « Voet, 23. 4. 10-11.