Reprinted from BusinessTech, by Luke Fraser – 2023-01-22
The Supreme Court of Appeal (SCA) says separate agreements from an antenuptial contract – or prenup – are valid and enforceable.
A prenup governs the matrimonial property system between two spouses and is entered into before a marriage concludes.
However, there was recent confusion regarding the validity of separate agreements signed by the parties in a marriage that already agreed to a prenup.
Wright Rose-Innes (WRI) has examined an SCA case to show that the two agreements can align.
The case in question involved a married couple – Mr and Mrs B – who had signed a prenup before marriage which stated that the marriage was to be out of the community of property with the exclusion of the accrual system.
The couple also signed a separate agreement which stated that Mr B would provide additional support if a divorce occurred – including monthly lifelong maintenance, paying additional costs and donating certain assets.
According to Wright Rose-Innes, the couple ultimately separated, and a dispute between the parties went to court when Mrs B wished to enforce the separate agreement.
The SCA ruled that the prenup and the separate agreement were both enforceable, and patrimonial consequences arising from death and divorce would still flow from the separate agreement.
The SCA said that the main aim of a prenup is not to create obligations but to provide a matrimonial property system for spouses that is different from the normal patrimonial consequences of marriage.
It added that the separate agreement never impeded the objectives of the prenup, and the parties’ estates remained separate. The parties also clearly did not want the separate agreement to replace or rectify the prenup.
The ruling means that there are no restrictions on all agreements between spouses out of the community of property – except for separate agreements that change the matrimonial regime and have not received a court order to do so.
Although the SCA ruling means that separate agreements for marriage are valid, WRI noted a fine line might exist, and separate agreements that go too far may be unenforceable.
Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. SD Law and Associates are experienced family law attorneys who will look after your interests and respect all parties, whether drawing up an antenuptial contract or supporting you through divorce.
Further reading:
- How to manage finances before tying the knot
- Antenuptial Contract (ANC) – What is an Antenuptial Contract?
- Financial planning for couples married with the accrual system
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