Society at large have become more legally conscious of their rights as individuals and their rights as a spouse in a marital bond. Antenuptial contracts have become part and parcel of wedding arrangements. Intended spouses are readily moving away from the default regime of a marriage in community of property to a marriage out of community of property, with the further election to include or exclude the application of the accrual system in the antenuptial contract. Through the medium of our judicial system it has become evident that we need to take further precautionary measures and carefully consider the effect of additional clauses which we may choose to be included in the antenuptial contract.
We herein consider the recent case of W v H 2017 (1) SA 196 (WCC). The main issue addressed in this case concerned the legality of a clause in an antenuptial contract, which antenuptial contract included the application of the accrual system. The rationale of the clause in question would have the effect that the wife would waiver any present or future right to personal maintenance, irrespective of the reason for the dissolution of the marriage. It was the husband’s cause to rely on the clause to negate the wife’s claim for personal maintenance in the divorce proceedings.
The clause in question unreasonably tipped the scales of justice in favour of the husband. The inherent prejudice to the wife was so undeniably obvious that the presiding Judge stated that “the husband planned the divorce prior to his marriage to his wife.”
The Court looked at public policy, which is entrenched in the supreme law of our land, the Constitution, and the values which the Constitution enshrines and promotes. Public policy would be determined having regard to those values. Human dignity, achievement of equality and enhancement of human rights and freedoms and the rule of law was considered. The Court held that the enforcement of the waiver for maintenance clause fell far short of meeting the requirements which would satisfy public policy, and were highlighted as follows, in that:
- ‘it deprived the one party (wife) of a legal right or remedy and is therefore against public policy’;
- ‘it deprived the courts of their statutory power in divorce matters as outlined in the rule of law, to award post-divorce maintenance, more specifically, with reference to the application of Section 7(2) of the Divorce Act 70 of 1979 which provides that in the absence of an order made in terms of ss (1) -
'the Court may, having regard to the existing or prospective means of each of the parties, their various 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 insofar as it may be relevant to the breakdown of the marriage 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 death or remarriage of the party in whose favour the order is given, whichever event may first occur ', and is therefore against public policy’.
- ‘it created an inequality between the husband and wife in that only the wife was precluded to a claim for spousal maintenance from the husband but the husband could (and did) claim spousal maintenance from the wife, and is therefore against public policy.’
The Court recognised that the husband assumed the “scorched earth” policy with regard to litigation, by instituting superfluous applications and raising bogus defences during the divorce proceedings in an attempt to increase legal costs on the part of the wife and place her in a position that would financially disable her from proceeding with further litigation. The intended result being that the wife would have no option but to succumb to his demands. Despite the exercise of this calculated tactic, the husband was unsuccessful.
The Court found that any contract and/or clause in a contract which found itself to be contrary to public policy would be considered unenforceable. The Court found that the clause was ‘manifestly unreasonable and offensive to public policy, therefore voidable on the grounds of unfairness.’ The Court found that the wife’s waiver of a claim of maintenance as included in the antenuptial contract was contrary to public policy.
Judgment was granted in favour of the wife and the clause in question declared void and unenforceable. The husband was ordered to pay maintenance monthly to the wife until her remarriage or death. The husband was further ordered to pay the wife’s legal costs on a scale as between attorney and client, including the costs of two counsel and the costs and attendance fees of three experts who testified in the action proceedings.
Whilst the dissolution of an anticipated marriage may be the furthest eventuality during preparation for the big wedding day, empower yourself by contracting wisely.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.