Laila Cassim | Conveyancing Supervisor
An antenuptial agreement is a contract entered into by two people before they get married. This determines how their assets and liabilities will be divided in the event of divorce or death. The agreement must be in writing, signed by both parties, and notarized.
In South Africa, antenuptial contracts are regulated by the Matrimonial Property Act of 1984 and is used to govern the matrimonial property system between spouses.
What are the legal effects though if the parties to a marriage conclude a separate agreement which purports to change some of the consequences that would apply to the marriage in terms of the antenuptial contracts. Is this enforceable or are such agreements that purport to change the marriage consequences invalid?
In a recent case heard before the Supreme Court of Appeal (SCA) (B v B (820/2021)  ZASCA 123) the enforceability of separate agreement came into dispute. In anticipation of marriage, Mr. and Mrs. B concluded an antenuptial contract which determined the marriage to be out of community of property with the exclusion of accrual. Subsequent to the conclusion and registration of the antenuptial contract, before the parties were married, they entered into a further written agreement in terms of which Mr. B agreed to amongst other things, donate certain assets to Mrs. B, pay for certain costs for as long as Mrs. B lived and pay a monthly lifelong maintenance to Mrs. B in the event of divorce. The parties eventually divorced and the enforceability of the co-existing agreement came into dispute.
In assessing the enforceability of this separate agreement, the SCA determined that the primary objective of an antenuptial contract is not to create obligations, but to determine the matrimonial property system between spouses by excluding or varying the normal patrimonial consequences of marriage and that the separate agreement did not aim to vary the antenuptial contract or the matrimonial consequences of the marriage.
Accordingly, the SCA found that the antenuptial contract and separate agreement were both valid and enforceable and could co-exist with the legal effect that a portion of the patrimonial consequences upon death or divorce would flow from the separate agreement and not only from the matrimonial regime.
Therefore, an antenuptial contract and separate agreement are both deemed valid and enforceable. This confirms that there is no preclusion on contracts between spouses out of community of property. Such a prohibition would only apply to an agreement that aims to have the effect of changing the parties’ matrimonial regime without being sanctioned by a court order. If that is not the case, then there is no general prohibition on the capacity of spouses to contract in respect of other agreements which could bind their estate.
Should you have or consider concluding a separate agreement with your spouse, it may be advisable to consult with your family attorney to ensure that such an agreement is valid and enforceable and able to co-exist with your antenuptial contract, should you have one.