Enforceability of a prenuptial executory donation

DB v CB 2021 JDR 0896 (GP) 2021 JDR 0896 (GP)

Marriage — Divorce — Proprietary consequences — Marriage out of community of property — Antenuptial contract — Enforceability of prenuptial executory donation with terms contradicting those of parties’ antenuptial contract — Enforcing such inconsistent with court’s discretion under Divorce Act 70 of 1979, s 7(2).

The parties’ ante-nuptial contract (ANC), which was registered 15 January 2015, records that they were married out of community of property and excluding accrual.

On 15 February 2015, the parties concluded a written agreement, referred to as the ‘B agreement’ that recorded the donations that the husband agreed to make upon dissolution of their intended marriage, either by divorce or death, namely a residential dwelling, a motor vehicle and life-long maintenance.

The parties married each other on 19 May 2015.

The marriage ended and the wife asked the court to enforce the B agreement.

The parties had received advice to apply to court to vary the terms of the ANC in terms of section 21 of the Matrimonial Act, which they did not do either before or after it was registered.

The court accepted the husband’s argument that the B agreement, the terms of which are antonymous to the ANC, cannot be enforced because it was an attempt to settle a divorce before their marriage was concluded; and enforcing the B agreement alongside the registered and legally enforceable ANC, which is binding not only inter partes but on third parties, was an attempt at varying or amending the ANC, which is legally impermissible.

Sections 7 (1) and (2) of the Divorce Act provide:

‘(1) A court granting a decree of divorce may in accordance with a written agreement between the parties, make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other (own underlining)

(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’

In terms of sections 7 (1) and (2) the authority to make orders in respect of matters such as maintenance, even where the parties have agreed, vests with the court.

The judge found that “In the present case, we are not dealing with a waiver of maintenance but an executory donation with terms that are contradictory to those of the parties’ ante-nuptial contract …A cursory perusal of the B agreement will confirm that it is concerned with, inter alia, maintenance of the respondent. The net effect of the court a quo’s holding that the B agreement is enforceable, and can be read with the antenuptial agreement, is that instead of a court exercising its discretion as is required in terms of section 7(2), the respondent will end up with an order of life long maintenance, couched as a donation, where no agreement existed in terms of section 7 (1) and in circumstances where the court would effectively have been ousted from exercising its discretion in terms of section 7(2) of the Divorce Act. Such a result cannot be countenanced. On this score, the court a quo erred. The ineluctable conclusion we reach is that the B agreement cannot be enforced”.

The court further held that “…But such a conclusion is legally untenable in the face of the requirements of section 21 of the Matrimonial Property Act. This is so because the B agreement introduces terms that are contradictory to the antenuptial contract. Before marrying each other, and by following the relevant provision of the Deeds Registry Act, the parties could have effected changes to the ante-nuptial contract via registration with the registrar. Having decided to marry without introducing the donation terms to the registered ante-nuptial, the only option for the parties to achieve what they now seek, was to apply to court for an amendment of the terms of their ANC, in terms of section 21”.

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