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DBM explains: Is an agreement between spouses contrary to the antenuptial contract valid?

DBM Attorney, Nqobile Nkosi shares some much needed legal advice pertaining to antenuptial contracts.

Question: “My husband and I concluded and registered an antenuptial contract before getting married in 2020. We would like to make a separate agreement which is different to the terms agreed to in the antenuptial contract – will our new agreement be valid and enforceable?”

Answer: An antenuptial contract or ANC is used to govern the matrimonial property system between spouses.

In the case of B v B (820/2021) [2022] ZASCA 123,the parties concluded an ANC which determined the marriage to be out of community of property with the exclusion of the accrual system.

Subsequent to the conclusion and registration of the ANC, they concluded a further written agreement in terms of which Mr B agreed to donate certain assets to Mrs B, pay for certain costs for as long as Mrs B lived and pay a monthly lifelong maintenance to Mrs B in the event of divorce.

The court determined that the separate agreement did not aim to vary the ANC and the estates of the parties remain separate,
accordingly, the SCA found that the ANC and separate agreement were both valid and enforceable and could co-exist with the legal effect that a portion of the patrimonial consequences upon death or divorce would flow from the separate agreement and not only from the matrimonial regime.

It is advisable to consult your family attorney before concluding a separate agreement to ensure that such an agreement is valid and enforceable and be able to co-exist with your ANC should you have one.



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