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The Constitutional Court of South Africa recently decided on whether a prenuptial agreement is enforceable.

A prenuptial agreement, which we ordinarily know as being an American concept, is an agreement made between two people before marrying that establishes rights to property and support in the event of death or divorce.

In South Africa, there are three matrimonial property regimes:

  • In community of property;
  • Out of community of property in terms of an antenuptial contract excluding the accrual system; and
  • Out of community of property in terms of an antenuptial contract including the accrual system.

The above matrimonial property regimes are governed by the Matrimonial Property Act 84 of 1984, in terms of which the court centres its decisions in respect of the dissolution of marriages.

However, the Constitutional Court judgment in the matter between D H B v C S B handed down on 22 May 2024, seems to significantly change the position of the court’s discretion in presiding over the dissolution of marriages and its patrimonial consequences.

The background of the matter is that before entering into marriage, Mr. DHB and Mrs. CSB concluded an antenuptial contract declaring their marriage to be out of community of property with the exclusion of the accrual system, and this contract was registered on 22 January 2015. On 20 February 2015, the parties concluded a further agreement which they referred to as a prenuptial agreement.

The prenuptial agreement provided that:

  • the parties’ marriage shall be in terms of their antenuptial contract (out of community of property with the exclusion of the accrual system);
  • the prenuptial agreement is to be read together with the antenuptial contract; and
  • upon the dissolution of their marriage, by either divorce or death, Mr. DHB agreed to donate to Mrs. CSB a residential dwelling to the value of R1 500 000.00, a motor vehicle to the value of R250 000.00, monthly contributions in respect of her medical aid membership, the payment of the premiums of a life policy during her lifetime and R20 000.00 per month in respect of her life-long spousal maintenance.

On 8 August 2018, Mr. DHB instituted divorce proceedings against Mrs. CSB in the Regional Court for the Regional Division of Gauteng held at Springs, and in defending the action, Mrs. CSB filed a counterclaim in which she sought enforcement of the terms of the prenuptial agreement. Mr. DHB admitted having executed the prenuptial agreement, but denied that its terms were enforceable, given the existence of the antenuptial contract.

The court was therefore required to determine whether the prenuptial agreement could co-exist with the antenuptial contract.

Mrs. CSB’s counterclaim pleaded the antenuptial agreement as a donation agreement. In terms of section 22 of the Matrimonial Property Act, subject to the provisions of the Insolvency Act 1936, no transaction is void or voidable merely because it amounts to a donation between spouses.

Considering the above section of the Matrimonial Property Act, and noting that donations between spouses are permissible, together with the fact that parties are entitled to enter into agreements, provided that they are not unlawful or contrary to public policy, it is simple to understand how the Constitutional Court came to its decision.

Notwithstanding a dissenting judgment by a minority of judges, it was decided by the majority that prenuptial agreements are valid and enforceable, and that they can co-exist with antenuptial contracts, as the very nature of the prenuptial agreement did not impact the applicability of the antenuptial contract. The parties’ estates would remain separate and the antenuptial contract remains applicable in terms of the divorce, despite Mrs. CSB’s entitlement to enforce the terms of the prenuptial agreement.

The parties entered into a contract, or one may refer to it as a donation agreement, and with reliance on the legal principle of pacta sun servanda (agreements must be kept) and freedom of contract, the court was inclined to uphold such an agreement.

The issues of whether prenuptial agreements oust the discretion of divorce courts to make orders with regard to the division of the assets of parties or the payment of maintenance by the one party to another, are yet to be determined. There is much room for the development of our South African legal principles in respect of prenuptial agreements and how they ought to be considered together with the applicability of the Matrimonial Property Act and Divorce Act.

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