Legal update 2 of 2022: Validity of postnuptial agreements

moment of truth | Legal update 2 of 2022 | February 2022 Page 1 of 2

Introduction ____________________________________________________________________________________

This update deals with the validity of postnuptial agreements between married persons and whether any changes made to the

antenuptial agreement should be enforceable. Below is a summary of and more detail on the case.

Summary ___________________________________________________________________________________

Case: A M V H M, Constitutional Court (Case no: CCT

95/19). Reported 2020.

• The finding: A postnuptial agreement is not valid and

enforceable if at the time of concluding the agreement,

the parties were not contemplating divorce.

• Practical application: A prenuptial agreement (known as

a prenup) is a contract that a couple enters into before

they get married that deals with the division of financial

assets in the event of divorce. A postnup is simply a

prenup entered into after the parties got married.

Married couples should ensure that when they enter into

a postnup that both parties do so with the intention of

reaching a binding settlement for purposes of divorce

proceedings.

Case: A M V H M, Constitutional Court (Case no: CCT

95/19). Reported 2020.

The timeline of the events leading up to the case before the

Constitutional Court was as follows:

• 28 August 1993: Ms A M and Mr H M were married to

each other out of community of property with the

exclusion of the accrual system. The antenuptial

contract was duly registered in terms of the Matrimonial

Property Act (‘the Act’).

• Ms A M drafted a postnuptial agreement that expressly

stated that Mr H M would set aside the antenuptial

agreement and pay her maintenance and that she would

be entitled to half of the estate.

• Apr/May 2014: Ms A M presented the agreement twice

to Mr H M for signing. However, he refused. At that

stage there was no mention of a divorce.

• 10 November 2014: Mr H M signed the agreement.

Once again, there was no mention of a divorce.

• After that, Ms A M gave the agreement to friends for

safekeeping and the parties continued with their

marriage as normal.

• 30 November 2014: Ms A M confronted her husband

about his extramarital affair, which led to the breakdown

of their marriage.

• 15 January 2015: Mr H M filed for divorce. In her

counterclaim, Ms A M asked for the postnuptial

agreement to be declared valid and binding on them.

Alternatively, she claimed that they entered into the

agreement because they were going to get divorced, and

it was meant to deal with the claims relating to the

termination of their marriage and the patrimonial

consequences flowing from that.

moment of truth | Legal update 2 of 2022 | February 2022 Page 2 of 2

The Regional Court’s ruling

The Regional Court found that the agreement was invalid

and unenforceable. The fact that the parties entered into an

agreement without contemplating divorce meant that it

could not be made an order of court.

The High Court’s ruling

Ms A M appealed the Regional Court judgment in the High

Court.

The High Court found that the nature of the contractual

relationship between the parties was that they were spouses

whose marriage had broken down irretrievably. They were

contemplating a divorce and had entered into the agreement

with the intention of reaching a binding settlement for their

pending divorce action.

The Court ruled that the postnuptial agreement was valid

and enforceable.

The Supreme Court of Appeal’s ruling

Mr H M appealed the High Court’s judgement in the

Supreme Court of Appeal (SCA).

The SCA found that while the parties complied with the

requirements for the agreement to be valid, it could not be

enforceable as Ms A M admitted that she and Mr H M only

contemplated divorce on 30 November 2014 for the first

time, whereas Mr H M signed the agreement more than two

weeks earlier on 10 November 2014.

The SCA ruled that a postnuptial agreement may only be

made an order of court if it was in relation to an actual legal

dispute or preparation for litigation between the parties.

Therefore, the parties must have contemplated divorce at

the time of concluding their agreement for it to be

enforceable.

The Constitutional Court’s ruling

Ms A M appealed the SCA’s judgment to the Constitutional

Court (CC), challenging the effect of the SCA’s ruling that all

agreements between spouses who are married out of

community of property are against public policy, invalid and

unenforceable, unless entered into in contemplation of a

divorce. She also challenged the SCA’s interpretation of

section 21 of the Act, claiming that it did not allow for such

agreements, which negatively impacts on married couples’

contractual freedom and infringing on their constitutional

rights to freedom, dignity and non-discrimination.

The CC found that the SCA did not prohibit all agreements

between spouses married out of community of property. It

confirmed as follows: “The finding only relates to this

agreement, whose terms appeared to have the effect of

changing the parties’ matrimonial regime without being

sanctioned by a court order. It did not affect the parties’

capacity to contract in respect of other agreements.” The

agreement did not relate to a legal issue between the parties

and had no relation to litigation.

The CC dismissed the constitutional challenges because

they were not raised in the High Court and SCA respectively

and found that it was not in the interest of justice to grant

leave to appeal.

The application was dismissed.

Hettie Joubert and Jonathan Tabane

Wealth & Retirement Fund Legal

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