23/02/2023
CB v DB 2023 (1) SA 381 (SCA)
Marriage — Divorce — Proprietary rights — Marriage out of community of property with exclusion of accrual — Whether agreement governing maintenance enforceable.
Appellant and respondent in anticipation of their marriage concluded an antenuptial agreement, declaring that their marriage would be out of community of property and exclusory of accrual. They then registered an antenuptial contract in the Deeds Registry and then concluded a further agreement (the agreement), which they requested 'be read together with the Prenuptial Agreement'. The agreement provided that on the dissolution of their marriage by respondent's death or by divorce, respondent would donate certain specified property to appellant.
Appellant and respondent then got married, but a few years later respondent brought an action for divorce in the regional court, which appellant defended, and appellant also counterclaimed for an order of specific performance of the agreement. Respondent's defence was that the agreement was unenforceable, because it conflicted with the antenuptial contract and impermissibly purported to vary it, an argument which the regional court rejected. The court then declared the agreement enforceable, and to be read with the antenuptial contract.
Respondent then appealed to the High Court, making the aforesaid argument. Respondent also argued that the agreement was not enforceable under s 7(1) of the Divorce Act 70 of 1979 ('A Court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to . . . payment of maintenance by the one party to the other'); and for depriving the divorce court of the discretion it possessed in terms of s 7(2) of the Divorce Act ('In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance . . . the Court may . . . make an order which the Court finds just in respect of the payment of maintenance by the one party to the other') (see [5]).
The High Court agreed with these arguments and upheld respondent's appeal, set aside the regional court's order, and ordered that the agreement was unenforceable. Appellant then, with the Supreme Court of Appeal's special leave, appealed to it.
The SCA upheld the appeal, reasoning as follows.
• The antenuptial contract governed the matrimonial regime, while the agreement did not bear on this at all. Accordingly there was no contravention of s 21 of the Matrimonial Property Act 88 of 1984 (see [9]).
• Analysing the text and the context in which the appellant and respondent made the agreement, as well as its purpose, it revealed no intention that it should amend the antenuptial contract (see [10]).
• Section 7(1) of the Divorce Act was of no application: appellant s claim being in contract, for specific performance of the agreement, and not for the agreement to be made an order of court (see [11]).
• The agreement did not oust a court's discretion under s 7(2): a court did not have a power mero motu to exercise the discretion given by the section (see [12]). It could only do so if a party brought its claim under it (see [15]).
Appeal accordingly upheld, the High Court's order set aside and replaced with an order dismissing respondent's appeal against the regional court's decision, which found the agreement enforceable (see [16]).
