Case  CCT 293/22
[2024] ZACC 09

Hearing Date: 12 September 2023

Judgement Date: 22 May 2024

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Wednesday, 22 May 2024 at 09h30, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the Supreme Court of Appeal. The matter concerns the enforceability of a prenuptial contract which provides for, amongst other things, maintenance on the dissolution of marriage.

In anticipation of their marriage, the applicant, Mr D H B, and the respondent, Ms C S B, concluded an antenuptial contract which declared their marriage to be out of community of property with the exclusion of the accrual system. The antenuptial contract was registered on 22 January 2015. On 20 February 2015, the parties concluded a further agreement (a prenuptial agreement) that provided that on the dissolution of their marriage by divorce or death, the applicant agreed to donate to the respondent, amongst other things, R20 000 per month as life-long maintenance.

The parties married on 19 May 2015. On 8 August 2018, the applicant instituted divorce proceedings against the respondent, which are still pending. The respondent filed a counter-claim seeking enforcement of the prenuptial agreement. The applicant filed a plea to the counter-claim denying that the terms of the agreement were enforceable.

The parties requested that the Regional Court separately adjudicate the issue whether the prenuptial agreement was enforceable.

In the Regional Court, the applicant contended that the prenuptial agreement was unenforceable as the respondent had not pleaded rectification of the antenuptial contract, the parties had not amended the antenuptial contract, the prenuptial agreement was an attempt to settle a divorce before a marriage was concluded and the prenuptial agreement contradicted the terms of the antenuptial contract. The respondent argued that the agreements should be read together and enforced. The Regional Court, relying on the principle of pacta sunt servanda (agreements must be kept) and freedom of contract, held that the prenuptial agreement was enforceable and that it could be read with the antenuptial contract.

The applicant appealed the Regional Court’s decision to the High Court. In that Court, the applicant argued that the antenuptial contract and the prenuptial agreement could not be read together. Further, the applicant alleged that the agreement was unenforceable as it ousted the court’s discretion as provided for in section 7 of the Divorce Act 70 of 1979 (ousting issue). The respondent contended that she was only seeking specific performance of a donation agreement. The High Court set aside the decision of the Regional Court and held that the agreement was unenforceable as it ousted the court’s discretion under section 7(2) of the Divorce Act.

In the Supreme Court of Appeal, the respondent argued that there was no conflict between the antenuptial contract and the prenuptial agreement. Further, the respondent argued that the counterclaim was a contractual claim and thus sections 7(1) and (2) of the Divorce Act were not applicable. The Supreme Court of Appeal ruled in favour of the respondent, finding that the two legal instruments (the antenuptial contract and the prenuptial agreement) could co-exist. That Court also held that the prenuptial agreement does not fall within the ambit of section 7(2). The Supreme Court of Appeal held that, as the respondent is not claiming maintenance, but simply asking the divorce court to enforce the agreement, the prenuptial agreement does not oust the discretion of the court in terms of section 7(2).

In this Court, the applicant contended that the agreement was inconsistent with the Divorce Act as it deprived the divorce court of its discretion to award appropriate maintenance. Further, the applicant argued that the agreement was contra bonos mores (against public policy) as it: gave the respondent a financial benefit on divorce and encouraged divorce and immoral behaviour; purported to waive the applicant’s future rights at a time when he could not have known the parties’ financial positions upon the dissolution of their marriage; deprived the applicant of the legislative protection and judicial oversight under the Divorce Act; and allowed the parties to settle maintenance before the marriage, therefore side-stepping the legislation regulation divorce.

The respondent contended that the fact that one of the obligations in terms of the agreement includes the payment of “life-long maintenance”, did not mean that the agreement fell within the ambit of the Divorce Act. The respondent confirmed that she did not seek to have the agreement made an order of court or seek specific performance, nor did she intend to claim maintenance under section 7 of the Divorce Act.

The first judgment, penned by Theron J (Kollapen J, Mathopo J, Rogers J, Tshiqi J and Van Zyl AJ concurring), found that this matter engaged this Court’s constitutional jurisdiction as it potentially raised the question whether a prenuptial agreement purporting to regulate the patrimonial consequences of divorce, including maintenance, was contrary to public policy and unenforceable for the reason that is impermissibly ousted the jurisdiction conferred on the divorce court in terms of section 7(2) of the Divorce Act.

In respect of the merits, the first judgment found that there were two main issues for determination. First, was the enforceability of the prenuptial agreement in relation to sections 7(1) and (2) of the Divorce Act properly before the High Court and Supreme Court of Appeal? Secondly, if yes, was the conclusion reached by the Supreme Court of Appeal, that the prenuptial agreement was enforceable, correct?

In terms of the first question, the first judgment found that in the Regional Court it was common cause on the pleadings that the prenuptial agreement was a donation. No evidence was led by either party as to the nature of the prenuptial agreement, nor was any evidence led as to the characterisation of the donation itself. Further, it was clear from the judgment of the Regional Court that the only question that was argued before that Court was whether the prenuptial agreement was valid and enforceable vis-à-vis the antenuptial contract.

The first judgment highlighted that it was only when the applicant appealed to the High Court that he invoked section 7 of the Divorce Act and the issue of public policy. It would appear that the applicability of section 7 of the Divorce Act was considered for the first time on appeal. However, the High Court judgment was silent on how this issue came to be raised on appeal for the first time and if there was any prejudice to the parties.

The first judgment noted that on the pleadings as they stood, the prenuptial agreement was characterised as a donation agreement. If the applicant had intended to raise the issue of the nature of the prenuptial agreement, he should have led evidence in regard thereto or amended his pleadings. With no evidence being led by either party as to whether the agreement was a pure or remuneratory donation, it could not be said with any degree of certainty that the donation fell within the ambit of section 7 of the Divorce Act. The first judgment found that in the circumstances, it would be prejudicial and improper for this Court to determine a factual issue, without evidence, for the first time on appeal.

The first judgment found that the High Court and Supreme Court of Appeal were not entitled to decide a dispute that was raised for the first time on appeal. The agreement under consideration was, on the pleadings, an unspecified donation agreement and thus did not trigger section 7 of the Divorce Act. The first judgment concluded that the ousting issue was not properly before the Court. If evidence had been led as to the nature of the donation, the ousting issue could possibly have been considered. It follows that whatever was found by the Supreme Court of Appeal in respect of the characterisation of the prenuptial agreement, as well as on the settlement and ousting issues, were pro non scripto (as not written).

On the question that was before the Regional Court, the first judgment found that the Supreme Court of Appeal was correct in finding that the prenuptial agreement and the antenuptial contract could co-exist, as the donation does not change anything stante matrimonio (while the marriage was in force) and does not change the matrimonial regime. It merely changed the value of the estates after divorce or death. The two agreements could therefore be read together.

The first judgment highlighted that if the pleadings are amended to raise the ousting and settlement issues, and if the respondent pleads an alternative claim for maintenance in terms of section 7(2) of the Divorce Act, the Regional Court may decide these issues unencumbered by the judgments of the High Court and the Supreme Court of Appeal. All this Court should decide and did decide, was that the incompatibility issue was correctly decided by the Regional Court.

As a result, the majority granted leave to appeal and dismissed the appeal with costs.

The second judgment, penned by Schippers AJ (Zondo CJ and Maya DCJ concurring), stated that this Court must determine the matter because it concerns the illegality of an agreement: the Court cannot shut its eyes to an agreement that violates the law, even less on the ground that it was not pleaded.

According to the second judgment, the prenuptial agreement was not a donation. Rather, it was a contract, concluded by the parties prior to marriage, that determines spousal maintenance when the marriage comes to an end by divorce or death. All the terms of the prenuptial agreement comprise financial support to the respondent post-divorce. The prenuptial-agreement, therefore, was nothing more than an undertaking to provide spousal maintenance. No evidence of the circumstances leading up to its conclusion can change the meaning and effect of the agreement. The fact that the agreement was styled as a “donation” and that the respondent admitted this in the pleadings, does not render it enforceable as a matter of law. Further, the applicant had no intention of making any gift to or enriching the respondent. It followed that if the prenuptial agreement was not a donation, then it could not be enforced as such.

The second judgment maintains that the parties cannot by private agreement subvert a court’s power under section 7(1) of the Divorce Act, to vet a settlement agreement providing for spousal maintenance; or in the absence of such agreement, to make an order for spousal maintenance under section 7(2). The prenuptial agreement was therefore illegal and unenforceable. It was inconsistent with the legislative and societal objectives of post-divorce spousal maintenance and ousts a divorce court’s power under section 7. The second judgment concluded that the prenuptial agreement was also at odds with the Maintenance of Surviving Spouses Act 27 of 1990. Therefore, the minority would have granted leave and allowed the appeal, with costs.

The Full judgment  here