How the new divorce ruling from the Supreme Court of Appeal could affect prenuptial agreements in South Africa

By Cobus Kotze, intern at Gawie le Roux Institute of Law

Prenuptial agreements are entered into before the conclusion of marriage and govern the matrimonial property system between two spouses. There was confusion regarding the validity of separate agreements made between two spouses if a prenuptial agreement already exists. In the 2022 case of B v B, the Supreme Court of Appeal (SCA) held that new agreements made in a marriage that is separate from the prenuptial agreement can co-exist.

In the B v B case, the married couple wanting a divorce signed a prenuptial agreement before their marriage stating that the marriage would be out of the community of property, with accrual excluded. The couple also signed a separate agreement stating that the husband would provide additional support to the wife if a divorce would occur. As with most divorce proceedings, financial disputes are often the biggest hurdle to overcome. In this case, there was a dispute regarding the validity of the separate agreement, since the wife wanted to enforce the separate agreement, which required the husband to provide additional support to the wife in the case of a divorce. The SCA held that both the prenuptial agreement and the separate agreement should be enforced. This means that there are ultimately no restrictions on separate agreements made between spouses who married out of the community of property unless it is an agreement that changes the matrimonial regime of a marriage (which has not yet received a court order). The SCA made it clear that the main goal or aim of a prenuptial agreement is to provide a different matrimonial property system for spouses and not to create obligations. Thus, the husband in the B v B case had to uphold the separate agreement, where he agreed to provide additional financial support to the wife.

It should be noted that not all separate agreements are valid. There exists a fine line between a valid separate agreement and an agreement that is simply unenforceable due to unreasonable and invalid demands or obligations.