Public Policy in Family Contracts, Part II: Antenuptial Contracts

• Jurisdiction: South Africa
• Pages: 3-23
• Author: Bonthuys, E.
• Date: 21 June 2021
• DOI: https://doi.org/10.47348/SLR/v32/i1a1
• Published date: 21 June 2021
• Citation: (2021) 32 Stell LR 3

https://doi.org/10.47348/SLR/v32/i1a1

3

PUBLIC POLICY IN FAMILY CONTRACTS,

PART II: ANTENUPTIAL CONTRACTS

Elsje Bonthuys

BA LLB LLM (Stell) PhD (Cantab)

Professor, University of the Witwatersrand

Abstract

This, the second part of a n article on public policy in cont racts between

family members, focuses on legalit y in antenuptial cont racts, particularly

those which exclude all forms of sha ring between spo uses. The Matrimoni al

Property Act 88 of 1984 is now 35 years old and, apart f rom writing, it

neither requires formalit ies to ensure that prospective spouses who e nter into

antenuptial contr acts fully appreciate the con sequences of their agre ements,

nor does it guarantee th at the agreed upon proper ty system is fair to both

spouses. Instead, th e focus is upon protecting th e interests of third partie s

and creditors. The comm on-law principle of immutabilit y makes it ver y

onerous for parties t o change the matrimonial property conseq uences during

their marriage and, be cause the judicial discre tion to order redistr ibution of

benets at divorce is limited to marriages concluded before the implementation

of the Matrimonial Proper ty Act, enforcement of ante nuptial contracts at the

termination of the mar riage can lead to grossly unfair results. This u nfairness

has implications for gender e quality, both because of gendered disparities in

bargaining power at the conclusion of a ntenuptial contrac ts and legislation

which limits the courts’ ability to deviate f rom contracts which mostly favour

men, while retaining a discretio n to deviate from cont racts which tend to

favour women. This a rticle argues that t he second leg of the public policy

test, as articula ted by the Constitut ional Court in Barkhu izen v Napier can

remedy the inadequa cies in the statutory a nd common law by allowing the

courts to consider ine qualities in bargaining power and unfairnes s at the time

of the enforcement of antenup tial contracts, in ef fect overriding the principle

of immutability and creat ing a residual judicial disc retion not to enforce an

antenuptial contract.

Keyword s: antenuptial cont racts; prenuptial contra cts; gender equality;

public policy; matrimonial proper ty; unequal bargaining power

(2021) 32 Stell LR 3

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https://doi.org/10.47348/SLR/v32/i1a1

1 Introduction: Public policy and the legality of contracts

This is the second par t of an article that consider s the use of contracts i n

South African fa mily law. Unlike some legal systems,1 South African law

allows for and enforces contracts con cluded between unma rried inti mate

partners (i n the form of universal par tnerships and ag reements to maint ain)

and those concluded bet ween spouses, specically antenuptial contracts,

universal par tnerships and set tlement agreements at divorce. Both pa rts of

this article deal w ith the legality of t hese contracts and of specic terms i n

these contracts. The  rst part considered the legality of agre ements about

spousal support,2 whereas this (the second par t) examines agreeme nts on

how the spouses’ proper ty will be divided when relationships end. The latter

category includes both un iversal partne rship agreements a nd antenuptial

contracts, but in this ar ticle the focus is specically on a ntenuptial contr acts

because the juris prudence on legality of un iversal partne rships is still

undeveloped. The default antenuptial cont ract which initiate s the accrual

system is largely uncontentious, but ac ademic commentar y has consistently

criticised the effects of ante nuptial contracts which br ing about complete

separation of propert y. As a result, my prima ry focus will be on the latter ty pe

of antenuptial cont ract.3 In addition to determi ning the matrimonial proper ty

system applicable to their mar riage, parties are fre e to include other provisions

in their antenuptial c ontracts, to which I wi ll also refer.

Legality is impor tant because it deter mines what par ties can and cannot

contract about; courts will not e nforce illegal contracts or illegal contractual

terms. Legalit y can be determined by stat ute (statutory illegality), but there are

no legislative provisions pertain ing to legality in ante nuptial contracts. T his

means that the com mon law determines legalit y in accordance with the well-

known principles agai nst ousting the jur isdiction of the court s, condoning

fraudulent or immor al behaviour, undermi ning the adm inistration of justice,

1 Contractualisat ion of marital propert y distribution in fam ily law is a growing academ ic field in many

countrie s See, for i nstance, F Swennen (ed) Contr actualisation of Family Law – G lobal Perspectives

(2015); N Deth loff “Contr acting in Family Law: A Europ ean Perspe ctive” in K Boele-Woelki, J Miles

& JM Scherpe (eds) The Fu ture of Family Property in Eu rope (2011) 65; E Cooke “Ma rital P roperty

Agreement s and the Work of the Law Com mission for Eng land and Wales” i n K Boele-Woelki, J Miles

& JM Scherpe (eds) The Future of Famil y Propert y in Europe (2011) 95; S Thomps on Pren uptial

Agreements a nd the Presumpt ion of Free Choice: Iss ues of Power and Theo ry in Practice (2015); J Miles

“Radmacher v Granatino [2009] EWCA Civ 649: Uppin g the Ante-nu ptial Agreeme nt” (2009) 21 Child

& Family Law Quar terly 513 It raise s different questions for th e continental Europea n legal systems,

which have histor ically allowed spouse s to contract about cer tain aspects of t heir marriages, o n the one

hand, and the c ommon law systems which t raditionally have bee n more reliant on judicial d iscretion to

distribut e property eq uitably at divorce, but wh ich are currentl y moving towards a gre ater willing ness to

enforce aspe cts of spousal contra cts, on the other hand T he need, effectively, to ens ure gender equalit y

is a common theme a cross different sy stems See, for inst ance, JT Oldham “Wit h All My Worldly Goods

I Thee Endow, or Maybe Not: A Re evaluation of the Uniform Pre marital Agreement Act A fter Three

Decades” (2011) 19 Du ke Journal of Gender La w and Policy 83 This article, however, focuse s on the

use of public policy i n the South African lega l system, which raises spe cific domestic legal iss ues and

questions wh ich are not necessar ily found in other sys tems

2 E Bonthuys “Public Policy in Fami ly Contracts, Par t I: Agreements Ab out Spousal Mainte nance” (2020)

3 Stell LR 377

3 It is possible to create other pe rsonalised matr imonial proper ty regimes, but t hese contracts a re rare and

will not form part of the discuss ion See J Heaton “The Proprietar y Consequences of Divorce” in J Heaton

(ed) T he Law of Divorce and D issolution of Life Par tnerships in Sou th Africa (2014) 57 59

4 STEL L LR 2021 1

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