Where do agreements between spouses that are contrary to the ANC stand?

The Supreme Court of Appeal (SCA) recently set out that separate agreements from an antenuptial contract (ANC) or prenup are valid and enforceable. This was decided in the B v B (Case no 820/2021) [2022] ZASCA 123 (22 September 2022) case.

A prenup/ANC governs the matrimonial property system between two spouses and is entered into before a marriage is concluded. However, there was a recent confusion regarding the validity of separate agreements signed by the parties in a marriage that already agreed to a prenup.

In this case, the parties entered into an ANC which was duly registered in the deeds office in January 2015. Under the ANC they were to be married out of community of property without the accrual. In February 2015 they entered into an agreement under which DB (the respondent) undertook to make certain donations to CB (the appellant), including a house to the value of R1.5m, contributions to medical aid, a vehicle, a life policy, and maintenance for life. The parties got married in May 2015. The respondent started divorce proceedings in 2018. The parties requested that the court adjudicate the enforceability of the agreement separately.

The respondent argued that the agreement was unenforceable as it sought to change the terms of the ANC and the appellant argued that the agreement was separate from the ANC, and that it was a binding contract of donation. The court ruled in the appellant’s favour. On appeal, the Gauteng High Court Pretoria (Bam AJ) overturned this decision on the grounds that the agreement was unenforceable as it sought to alter the effect of the ANC under which the parties were married out of community of property without the accrual. The appellant appealed against this decision to the Supreme Court of Appeal (SCA).

The SCA (Kgoele AJA with Van der Merwe and Molemela JJA and Salie-Hlophe and Masipa AJJA concurring) held that the agreement did not seek to alter the ANC and in fact recognized and confirmed that the parties were aware of, and bound to, the terms of the ANC. However, parties were free to contract as they saw fit and the agreement did in no way infringe on the court’s powers under the Divorce Act, nor did it attempt to alter the matrimonial property regime. The appeal was upheld, and the decision of the Pretoria High Court overturned, resulting in the agreement being declared valid and enforceable.

Further, 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 stated 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 further added that the separate agreement never interfered 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.

This 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, it is worth noting that a fine line might exist, and separate agreements that go too far may be unenforceable.