In a day and age where uncertain times seem to be the only constant, many married couples are faced with the question of whether their marital regime best serves them, and if not, then whether they can merely agree for it to change?
Recent Case Law
In the recent matter of Anita Mans v Heinrich Mans (95/19), the Constitutional Court was tasked with deciding whether a postnuptial contract concluded by married persons, which departed from the terms of their antenuptial contract, was valid and enforceable.
On 28 August 1993, Mr and Mrs Mans were married out of community of property and with the exclusion of the accrual system. While their marriage still subsisted, on 10 November 2014, the parties concluded an agreement, contrary to their antenuptial contract, in terms of which Mrs Mans would be entitled to 50 percent of Mr Mans’ estate and further entitled to claim maintenance from him (“the Agreement”). The effect of the Agreement was to amend the antenuptial agreement concluded before their marriage and to change their marital regime.
On 30 November 2014 Mr Mans indicated that he wanted a divorce. The initial decision of the Mpumalanga Regional Court to dismiss Mrs Mans’ claim for an order declaring the Agreement valid and enforceable was appealed by Mrs Mans to the High Court, Gauteng Division, Pretoria. The High Court overturned the Regional Court’s decision and held that the Agreement was valid and enforceable as it had been concluded in contemplation of a divorce, with its purpose being to constitute a settlement agreement between the parties.
Mr Mans appealed the High Court’s decision to the Supreme Court of Appeal (“SCA”) which in turn found that since the parties had not approached a competent court for a change of their marital regime in terms of Section 21(1) of the Matrimonial Properties Act 88 of 1984 (“the MPA”), the parties could only effectively change their marital sanction by concluding an agreement in contemplation of a divorce. The SCA held that Mrs Mans had failed to show that the Agreement was concluded in contemplation of a divorce and accordingly set aside the order of the High Court. Mrs Mans attempt to approach the Constitutional Court for leave to appeal the SCA’s decision was dismissed and the SCA’s decision still stands
The only valid and enforceable way in which married couples can change their marital regime is by way of a simple application to the High Court brought in terms of Section 21(1) of the MPA. On the other hand, couples wishing to terminate their marriage can effectively alter their marital regime by agreement between them, provided that such agreement is concluded in contemplation of divorce.
Hugo van Heerden