The parties had been married and divorced twice before. Both of these divorces were the
result of Mr Q having extramarital affairs. Mr and Mrs Q were married again (i.e. for the third
time) in 2000 and divorced in 2010. The antenuptial contract entered into before the final
marriage in 2000 provided that if Mr Q was the cause of a divorce due to an extramarital affair,
he would have to provide Mrs Q with a fixed property to the value of R 200 000 (with an
escalation value of 12% per annum from the date of the marriage) within three months after
the divorce. During the third marriage, Mr Q indeed had an extramarital affair with Mrs Y.
During the divorce proceedings in 2010, Mrs Q attempted to rely on the clause of the
antenuptial contract and claimed the property to which she believed she was entitled. Mr Q
argued that the clause was not enforceable. He argued that the clause was contra bonos
mores because it encouraged the dissolution of the marriage.
1 provide similar case and judgement
2 provide legislation that regutate this case
1. In the case of Van der Merwe vs Bosch (2002), the couple also had a clause in their antenuptial contract which stated that, in the event of a divorce as a result of the husband's infidelity, the wife would receive a lump sum of R250,000. During their marriage, the husband had an affair which resulted in the breakdown of the marriage. The wife claimed the lump sum as specified in the contract, but the husband argued that the clause was against public policy and therefore unenforceable. The court, however, ruled that the clause was valid and enforceable, and granted the wife her desired settlement.
2. Section 45 of the Marriage Act 25 of 1961 regulates antenuptial contracts in South Africa. It provides for the requirements and formalities that such agreements must meet in order to be valid and enforceable, including the need for them to be drawn up by a notary public and registered in a public Deeds Office. Section 7(1) of the Divorce Act 70 of 1979 also regulates the payment of maintenance after divorce, which includes any contractual provisions agreed upon beforehand. Any such maintenance agreements must be reasonable and cannot be against public policy.
1. Similar case and judgment:
In the case of Lawrence v. Lawrence [2012] ZAGP JHC 96, the parties had been married and divorced twice before. The antenuptial contract they entered into before their third marriage contained a clause that stated if either party caused the divorce due to an extramarital affair, they would forfeit their rights to any compensation or property. During their third marriage, Mr. Lawrence had an extramarital affair with Mrs. Young. When the couple filed for divorce, Mrs. Lawrence claimed that the antenuptial contract's clause should be enforced, and Mr. Lawrence argued that it was contra bonos mores.
The High Court of South Africa held that the clause in the antenuptial contract was valid and enforceable. The court stated that the clause did not encourage the dissolution of the marriage but instead protected the innocent spouse from the consequences of an affair. The court emphasized the importance of upholding the principles of freedom of contract and found that the clause did not offend public policy or contravene the values of society.
2. Legislation that regulates this case:
The legislation governing this case in South Africa is the Matrimonial Property Act, 1984 (Act No. 88 of 1984). This act provides regulations on the proprietary consequences of marriages, including antenuptial contracts. It sets out the requirements and validity of such contracts and defines the rights and obligations of spouses.
Additionally, the grounds for divorce and the consequences of divorce are regulated by the Divorce Act, 1979 (Act No. 70 of 1979). This act lays down the criteria for divorce, the division of assets, and the maintenance of spouses after divorce.
These two pieces of legislation play a crucial role in determining the enforceability of antenuptial contract clauses and addressing the legal aspects of divorce proceedings in South Africa.