New divorce ruling could affect prenups in South Africa

New divorce ruling could affect prenups in South Africa


The Supreme Court of Appeal (SCA) says separate agreements from an antenuptial contract – or prenup – are valid and enforceable.

A prenup governs the matrimonial property system between two spouses and is entered into before a marriage concludes.

However, there was recent confusion regarding the validity of separate agreements signed by the parties in a marriage that already agreed to a prenup.

Wright Rose-Innes (WRI) has examined an SCA case to show that the two agreements can align.

The case in question involved a married couple – Mr and Mrs B – who had signed a prenup before marriage which stated that the marriage was to be out of the community of property with the exclusion of the accrual system.

The couple also signed a separate agreement which stated that Mr B would provide additional support if a divorce occurred – including monthly lifelong maintenance, paying additional costs, and donating certain assets.

According to Wright Rose-Innes, the couple ultimately separated, and a dispute between the parties went to court when Mrs B wished to enforce the separate agreement.

The SCA ruled that the prenup and the separate agreement were both enforceable, and patrimonial consequences arising from death and divorce

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