Couples urged not to sign marriage contracts without court supervision

The Constitutional Court on Tuesday dismissed an application for leave to appeal an SCA judgement on the binding nature of postnuptial contracts.

JOHANNESBURG - Married couples who would like to change their marital regime have been advised to approach the courts in compliance with Section 21 of the Matrimonial Property Act.

They are urged not to rely on written contracts entered into without the supervision of the courts.

The Constitutional Court on Tuesday dismissed an application for leave to appeal a Supreme Court of Appeal (SCA) judgment on the binding nature of postnuptial contracts between married couples.

Anita Mans approached the court after she and her husband signed a contract outside of their antenuptial contract, days before he filed for divorce.

The contract was to give her access to 50% of her husband’s estate in the event of a divorce.

As it stands, the SCA was currently the highest court to have made a ruling on this matter. It dismissed a High Court ruling that said Mans was entitled to half of her husband Heinrich’s estate as their postnuptial contract was binding.

Instead, the SCA said that Anita failed to prove that there was a contemplation of divorce when the second contract was entered into, and that was vital for it to be valid.

Family lawyer Ceri von Ludwig explained how this back and forth could have been avoided.

“If you can get an agreement, you must do Section 21 of the Matrimonial Property Act. It’s a proper joint application to the High Court. If you can’t get an agreement, it’s either you’ve got to accept that the regime you have chosen you’re stuck with it, or you’ve got to get divorced sooner rather than later,” she said.

Anita Mans approached the Constitutional Court for leave to appeal, but her bid was dismissed, which meant the SCA ruling in favour of her husband stood.