Pay careful attention to the antenuptial contract

By Monday October 1st, 2018 Afrikaans, English, Family Law No Comments

An acrimonious divorce was heard in the Cape High Court and then had another episode in the Appeal Court in Bloemfontein.

The husband, a senior advocate from Gauteng, was approximately 23 years older than his second wife. He overpowered her objections and, a day before the marriage, made her sign an antenuptial contract wherein she signed away her rights to claim maintenance if the parties ever divorced.

When the marriage broke down 24 years later, he tried to enforce this contract.  Neither of the two courts fell for his arguments. (It didn’t help that both courts also found that he had lied to the court).

The Appeal Court determined that a clause in an antenuptial contract stating that the one spouse will never claim maintenance against the other spouse, was invalid and unenforceable. There were two reasons for this:  firstly, such a waiver was against public policy (namely section 7 of the Divorce Act, 70 of 1979) and secondly, such an agreement would override the court’s statutory power (also section 7 of the Divorce Act) to grant maintenance to a spouse upon divorce.

The lesson here is: don’t be so excited about the imminent wedding, that you don’t pay careful attention to the antenuptial contract.

Consult your lawyer before you sign anything, especially if it’s a contract that might only be enforced 20 years later.



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