A party’s marriage was shaky, and the husband asked us if they could enter into an agreement recording their marriage’s proprietary and other consequences should it end in divorce. The husband wanted to know if a court could make the arrangement a court order.

We pointed out that they would have to  apply to court in terms of section 21 of the Matrimonial Property Act to vary their matrimonial property regime. We advised them that they could not simply enter into an agreement and have it made an order of court.

In the case of Capital Profound v Guilt Food [2022] ZAMPMBHC 78 at [19]-[26, Capital Profound asked the court to make an agreement it reached with Guilt Food a court order. The court found that before it can make an agreement a court order, one party ought to have sued the other. It was only appropriate to do so if the litigation had commenced.

In Eke v Parsons, the Constitutional Court held that where litigation had not yet commenced, a settlement agreement may not be made an order of court. There must be not only a dispute between the parties that led to the settlement agreement, but the issue or lis concerned must be properly before the court.