Conflict between an ANC and contract providing for lifelong maintenance

In a recent Supreme Court of Appeal (SCA) case, the court had to decide if an agreement concluded between the parties conflicted with their antenuptial contract (ANC).

The ANC declared their marriage to be out of community of property with the exclusion of the accrual system. After the registration of the ANC and before the solemnization of their marriage, the parties concluded a written agreement. It provided that on the dissolution of the marriage by the death of the husband, or their divorce, the husband undertook to donate to the wife an immovable property and a car and to pay her medical aid premiums and lifelong maintenance.

The marriage soured and the wife sued for divorce. The husband argued that the agreement was unenforceable as it contradicted the ANC.

On appeal, the SCA agreed with the wife’s contention that “there is no conflict between the terms of the ANC and the agreement; they co-exist and remain valid and enforceable as two distinct and separate legal instruments, each serving a different purpose which do not impinge upon each other”.

The court stated that “The primary objective of the ANC is not to create obligations, but to determine the matrimonial property system between spouses by excluding or varying the normal patrimonial consequences of marriage”. On that basis, it upheld the wife’s claim stating that the agreement did not purport to vary the ANC both could co-exist “because an ANC regulates the matrimonial regime of the parties stante matrimonio only, whereas the agreement has no bearing at all on the nature of their matrimonial regime and the respective estates of the parties. Their estates remain separate. Thus, the provisions of the ANC will remain intact and will be applicable upon their divorce despite the appellant’s entitlement to enforce the terms of the agreement”.

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