By Amorette Gangel, Associate, BDK Attorneys
On 26 May 2020, the Constitutional Court dismissed an application by an appellant who sought to have a postnuptial agreement, which was entered into between a married couple during the course of their marriage and not sanctioned by Court, declared valid.
In the matter of AM v HM, a couple were married out of community of property by way of an Antenuptial Contract. During the course of their marriage the parties entered into a postnuptial agreement whereby it was agreed that the wife would be entitled to half of the matrimonial estate upon divorce, contrary to the terms of the Antenuptial Contract.
The postnuptial agreement intended for the marital regime of the parties to be altered from out of community of property to in community of property. However, Section 21 of the Matrimonial Property Act, 1984 (Act 88 of 1984) dictates that should a married couple intend to change their marital regime, leave from the Court must be sought.
Subsequently, the parties instituted action for divorce and the wife sought to enforce the postnuptial agreement. The Regional Court dismissed the wife’s claim on the basis that the enforcement of the postnuptial agreement was contrary to Section 21 of the Act and that at the time of signing the agreement, divorce was not contemplated.
The matter was taken on appeal to the High Court who overturned the decision of the Regional Court. The matter was subsequently taken on appeal to the Supreme Court of Appeal who upheld the decision of the Regional Court. The Supreme Court held that the wife had failed to prove that the postnuptial agreement was in contemplation of divorce.
The matter was then brought before the Constitutional Court who dismissed the matter on the basis that the appellant (the wife) sought to ventilate new issues which were not previously argued before the High Court and Supreme Court of Appeal.
It is imperative that when parties seek to alter their marital regime, application first be made to a High Court for such leave (permission). An agreement which is in contemplation of divorce may be enforced and relied upon by parties. However, a postnuptial agreement which seeks to alter the marital regime must first be approved by the court.
