Validity of Partnerships Between Spouses Married out of Community of Property to One Another

INTRODUCTION

???It is a general rule in our law that an antenuptial contract cannot be amended inter partes after conclusion of the marriage (Ex parte De Zwaan and Another 1909 TS 676)).

Such a contract can, however, be amended by the Court, but only in a very limited sense. In Ex parte Venter et Uxor 1948 (2) SA 175 (O), it was held that the court’s power to authorize the revocation or amendment of antenuptial contracts, is strictly limited to those cases where the marriage is dissolved or where the contents of the written contract did not give effect to the actual agreement between the parties.

At the Registrars’ Annual Conference (see RCR 52 of 2011) the following question was posed:

??“Does the case of Ex parte Venter et Uxor 1948 (2) SA 175 (O) still find application in the light of the provisions of the Matrimonial Property Act 88 of 1984?”

The Conference held that it does, as the provisions of the Matrimonial Property Act can only be utilized to change the matrimonial property regime of spouses and not the terms of an antenuptial contract.

? PARTNERSHIPS BETWEEN SPOUSES

??In the case of Butters v Mncora 2012 (4) SA (1) SCA two types of universal partnerships were discussed, and they were addressed as follows at paragraph?14 of the case:

?“It appears to be uncontroversial that, apart from particular partnerships entered into for the purposes of a particular enterprise, Roman and Roman Dutch law also recognized universal partnerships. Within the latter category, a distinction was drawn between two kinds. The first as the societas universorum bonorum – also referred to as the societas omnium bonorum – by which the parties agree to put in common all their property present and future. The second type consisted of the societas universorum quae ex quaestu veniunt where the parties agree that all they may acquire during the existence of the partnership from every kind of commercial undertaking shall be partnership property.”

When parties enter into an antenuptial contract with the exclusion of the accrual system they choose that their estates remain separate, and they do not share in each other’s accrual.

??In the case of JW v CW 2012 (2) SA 529 (NCK), a divorce action dealt with a similar situation. The parties were married out of community of property with the exclusion of the accrual system. The defendant counterclaimed for a declaratory order that a universal partnership existed between the parties, and other consequential relief. At paragraph?[25], Olivier?J said the following:

??“The establishment of a partnership like that alleged by the defendant would have defeated the clear purpose of the terms agreed upon in clauses?1 and 2 of the antenuptial contract. It would have substituted the matrimonial property regime agreed upon in the antenuptial contract with a regime which would have the opposite effect. The partnership envisaged in the counterclaim would not have been a legal entity separate from the matrimonial property regime which was supposed to apply between the parties.” (My emphasis.)

? Olivier?J concluded as follows, at paragraph?[36]:

“In my view evidence of an invalid revocation or amendment of the terms of the antenuptial contract would be inadmissible, on the basis of it being irrelevant as a result of the doctrine that an antenuptial contract cannot be revoked or amended in this manner.”

CONCLUSION

? From the above judgment, it is thus clear that a partnership between spouses married out of community of property having the effect of amending the terms of the antenuptial contract entered between the spouses will be of no force and effect.

?From a deeds registry perspective, these cases will not affect transactions to be registered as it will be for a court of law to decide whether the partnership had amended the antenuptial contract or not.

?The above case has also been confirmed by the case of Smalberger v Stals (112/2012) [2012] ZAECPEHC 80.

???????? Allen West

?????? Property Law Consultant

?????? Hannes Gouws and Partners