Top court dismisses appeal on marriage contracts signed without court supervision

The Constitutional Court has dismissed an application for leave to appeal by a woman who wanted the court to rule that a post-nuptial contract, signed between her and her former husband - without court supervision - was valid.
The Constitutional Court has dismissed an application for leave to appeal by a woman who wanted the court to rule that a post-nuptial contract, signed between her and her former husband - without court supervision - was valid.
Image: NICOLENE OLCKERS/GALLO IMAGES

The Constitutional Court has dismissed an application which sought an answer as to whether or not a post-nuptial agreement entered into by the parties during their marriage - without court supervision - is valid and enforceable.

The court said on Tuesday that since the constitutional issues raised in this case were raised for the first time in the highest court in the land, it was not in the interests of justice to grant the woman leave to appeal.

The case has been through the regional court, the high court and the Supreme Court of Appeal (SCA) before it reached the Constitutional Court.

In August 1993, a female accountant and a male chartered accountant were married out of community of property, with the exclusion of accrual.

In 2014, the woman, Mrs AM, drafted a document that purported to be a post-nuptial agreement.

The terms of the agreement were that her husband (Mr HM) would set aside the ante-nuptial contract, Mrs AM would be entitled to half of his estate, and that the husband would pay her maintenance.

She presented it to her husband on two occasions during that year but he refused to sign it. He eventually signed it on November 10 to, according to him, maintain peace in his house and for the sake of their minor daughter.

When the man issued summons for divorce in the Mbombela regional court in January 2015, Mrs AM sought a declaratory order to the effect that the post-nuptial agreement was valid and binding on the parties.

While the regional court granted a decree of divorce, it held that the post-nuptial agreement was invalid and unenforceable.

The woman was aggrieved by this finding and approached the high court in Pretoria for relief. The high court held that the agreement was enforceable.

When the man appealed to the SCA, that court last year set aside the order of the high court.

The woman then approached the Constitutional Court.

In a unanimous judgment on Tuesday, Justice Nonkosi Mhlantla found the woman's attack on the judgment of the SCA was misplaced.

In her arguments before the Constitutional Court, the woman said her case will affect every person in SA who is married out of community of property.

She said it was common for parties married out of community of property to conclude various agreements, and the judgment of the SCA will affect these agreements.

Mhlantla said a proper interpretation and analysis of the judgment reveals the SCA did not prescribe a bar on all agreements between spouses married out of community of property.

She said the SCA finding only related to their agreement, whose terms appeared to have the effect of changing the parties’ matrimonial regime without being sanctioned by a court order.

Mhlantla said the woman also raised new issues before the Constitutional Court that the high court and the SCA had not dealt with, including contractual freedom  dignity and unfair discrimination.

Mhlantla said it was accepted the Constitutional Court was better positioned when it was assisted by well-reasoned judgments from other courts on a particular issue.

"Since the constitutional issues are raised for the first time in this court, it is not in the interests of justice to grant leave to appeal," Mhlantla said.