W v H

• Jurisdiction: South Africa
• Judge: Weinkove AJ
• Judgment Date: 05 August 2016
• Docket Number: 25394/2010
• Hearing Date: 05 August 2016
• Counsel: J Dickerson SC (with J Andersen) for the plaintiff. F Gordon-Turner (with J Gray) for the defendant.
• Court: Western Cape Division, Cape Town

W v H
2017 (1) SA 196 (WCC)

2017 (1) SA p196

Citation	2017 (1) SA 196 (WCC)
Case No	25394/2010
Court	Western Cape Division, Cape Town
Judge	Weinkove AJ
Heard	August 5, 2016
Judgment	August 5, 2016
Counsel	J Dickerson SC (with J Andersen) for the plaintiff.; F Gordon-Turner (with J Gray) for the defendant.

Flynote: Sleutelwoorde

B Contract — Legality — Contracts contrary to public policy — Specific instances — Clause in antenuptial contract constituting unilateral waiver by wife of right to claim maintenance should marriage be dissolved, regardless of conduct of parties — Clause offending against core constitutional values upon which public policy grounded.

C Marriage — Divorce — Maintenance — Unilateral waiver prior to time of divorce — Legality — Clause in antenuptial contract constituting unilateral waiver by wife of right to claim maintenance should marriage be dissolved, regardless of conduct of parties — Clause contrary to public policy.

Headnote: Kopnota

D This matter concerned the legality of a clause in an antenuptial contract (ANC) which incorporated an accrual system governing the marriage which was entered into in Germany between the plaintiff wife and the defendant husband. It provided that, in consideration of her acceptance of certain donations, the wife waived any present or future right to claim maintenance E for herself should the intended marriage be dissolved in whatever manner and for whatever reason, and regardless of the conduct of the parties. The husband sought to rely on such clause to defeat the wife's claim for personal maintenance that she included in a divorce action she instituted against the former. However, the wife argued that the clause was per se contrary to public policy and unenforceable. In the alternative, she argued F that, even if it were not illegal per se, the clause should not be enforced, because to do so would be so palpably unfair and unreasonable that it would offend the notions of fairness, equality, justice and reasonableness which informed public policy. This was so given the circumstances under which the waiver agreement was concluded; and given the husband's systematic divesting of his estate of assets, thereby subverting the wife's claim to accrual, to which right she was entitled in terms of the broader G provisions of the ANC.

Held, that the clause incorporating the unilateral waiver of maintenance was per se so manifestly unreasonable that it offended against public policy, and was voidable on the grounds of unfairness. In particular, the ANC offended, in the manner set out below, core constitutional values of this country (among H them human dignity, equality, the enhancement of human rights and freedoms, and the rule of law), in which public policy was now deeply rooted. (Paragraph [28] at 202C – E.)

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It sought to exclude the statutory power of the court to award maintenance at a future time, when neither of the parties had any basis for apprehending the existence of the wife's potential entitlement to maintenance I upon divorce. (Paragraphs [29] and [31] at 202E – 203A and 203C/D.)

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It even sought to exclude the statutory power which was awarded to the wife in terms of s 2 of the Maintenance of Surviving Spouses Act 27 of 1990 to claim maintenance from the husband's estate on the dissolution of the marriage by the husband's death, that is, in the absence of any J divorce. (Paragraph [29] at 202E – 203A.)

2017 (1) SA p197

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It specifically exempted the husband from the consequences of all A misconduct on his part, including that misconduct which was cognisable by the court in terms of s 7(2) of the Divorce Act 70 of 1979. (Paragraph [29] at 202E – 203A.)

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It was a unilateral waiver and was not accompanied by a corresponding waiver on the part of the husband. This tended towards the achievement of inequality. (Paragraphs [29] and [33] at 202E – 203A and 203F.)) B

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The donations in clauses 6 and 8 of the ANC were ostensibly given as a benefit in return for the waiver, but at the same time, contrary to s 5(2) of the Matrimonial Property Act 88 of 1984, such donations were not excluded from the donee's estate for accrual purposes. Nevertheless, in terms of clause 3 of the ANC, these donations were expressly to be taken into account as part of the wife's estate. (Paragraph [29] at 202E – 203A.) C

Held, further, that the doctrine of pacta sunt servanda did not apply to the present matter. The ANC was a contract sui generis. Any pacta that found its way into an ANC would always be subject to the test of public policy because ANCs were unique in the sense that they could only be executed in a prescribed manner and form because this was the very foundation of a contract of marriage. The legislator and our courts consistently monitored D contracts of this nature. It was not helpful to refer to commercial contracts or to import the findings of the courts in commercial cases into ANCs as if ANCs stand on the same footing. (Paragraphs [155] – [156] at 226I – 227E.))

Held, further, having regard to the conditions which prevailed at the time the ANC was concluded, the husband's subsequent conduct and the present circumstances, that to ask the court to enforce this waiver would be unreasonable and E unfair, and offensive to public policy. (Paragraph [22] at 201D – G.) As to those circumstances at the time of the agreement the court held that inter alia:

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The parties were in unequal bargaining positions when negotiating the agreement. The husband (53 years old at the time) exerted unfair pressure on the wife (who was 28 years old) to obtain her consent to the waiver clause, rushing her and threatening not to marry her and be a F father to their child (with whom she was pregnant at the time) if she failed to agree to it. (Paragraphs [22], [35] and [37] at 201D – G, 203I and 204A – C.)

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At the time of her entering the contract she did not have a real knowledge and understanding of the law applicable, and in particular the impact of the particular ANC and the clause in question in the context of South African G law. She was not given an opportunity further to acquire this knowledge, and the advice she did receive was insufficient. (Paragraphs [38.6] – [38.9] at 204E – I.)

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Furthermore, the husband structured the accrual system in such a way that the donations, which were to be compensation for the wife's waiver of her right to claim maintenance, had to be treated as part of the wife's H accrual. Her compensation was thereby denuded. (Paragraphs [44], [47] and [151] at 206E – F, 207C – E and 226E.)

As to the husband's subsequent conduct, and the present circumstances, the court held that inter alia:

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The husband systematically attempted to hide his assets and denude his estate, thus prejudicing the wife. He, additionally, refused to make proper I disclosure as required by s 7 of the Matrimonial Property Act 88 of 1984. (Paragraphs [45] – [46] at 206F – 207C.)

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Throughout the marriage the wife's actual earnings and future earning capacity in South Africa was limited. If the wife were not able to pursue her claim for maintenance, she would suffer prejudice, deprivation and indignity. (Paragraphs [43] – [44] at 206C – F.) J

2017 (1) SA p198

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A The husband failed to discharge his obligations in terms of the ANC to transfer a half-share in an unbonded property he had purchased prior to the marriage. (Paragraph [50] at 207H – I.)

Held, that the maintenance waiver in the antenuptial contract concluded between the parties was void and unenforceable. Divorce, maintenance and accrual granted as per order. (Paragraph [208] at 233H – 235E.)

B Cases cited

Southern Africa

AM v JM 2011 JDR 0091 (WCC): dictum in para [43] applied

B v B [2014] ZASCA 137: dictum in para [5] applied

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691; C [2007] ZACC 5): referred to

MB v DB 2013 (6) SA 86 (KZD): dictum in para [39] applied

Schierhout v Minister of Justice 1925 AD 417: applied.

England

NG v SG [2011] EWHC 3270 (Fam): referred to. D

Case Information

J Dickerson SC (with J Andersen) for the plaintiff.

F Gordon-Turner (with J Gray) for the defendant.

An action for divorce. The order is quoted below at [208].

Judgment

Weinkove AJ: E

Introduction

I have been requested by the defendant not to furnish the names of the parties because he felt that this might have an adverse effect on the F children, although they are all adults. I have agreed to refer to the plaintiff as 'the wife' and to the defendant as 'the husband', because there may be parts of this judgment which might cause unnecessary distress to the children, which I would like to avoid. This is a civil case and disputed versions must be determined on a balance of probabilities, not as in a criminal case 'beyond any reasonable doubt'. The test is what G is more likely than not or whether an inference can be drawn on the preponderance of probabilities.

[1] The parties were married to each other on 17 July 1992 in Hamburg, Germany, which marriage was governed by an antenuptial contract H (ANC') incorporating the accrual system. This was a document which the husband produced and in which he precluded the wife from claiming maintenance in the event of the marriage breaking down for any reason whatsoever.

[2] The husband testified that he inherited substantial assets. While in I practice he bought a cattle farm in Namibia. This became known as Groot Gamsberg (Gamsberg). This was obviously the beginning of the husband's plan to acquire assets outside South Africa, probably because of exchange-control problems within South Africa.

[3] He also bought an erf in Windhoek upon which he built a house. J He sold the house he owned in Namibia. He thereafter...