The importance of signing an Antenuptial Contract
Posted by Armand Coetzee
Antenuptial Contracts have become very important in our society, especially in the current economic circumstances in which the entire world finds itself. It is therefore imperative that parties ensure that their exact intensions are embodied in the final contract as to avoid unnecessary future complications as illustrated in the following case law:
In JG v MG 2012 (3) SA 12 (FB) JG (the husband) and MG (the wife) were married out of community of property with the exclusion of the accrual system. The husband had concluded an agreement with a retirement village in terms of which he was granted a life interest in one of the village units. The agreement provided that an occupier was not entitled to cede his right of occupation without prior approval. The antenuptial contract (ANC) concluded by the parties provided for the cession of the husband’s right of occupation to the wife and stipulated that the right would accrue to her for the duration of her life. In subsequent divorce proceedings the wife claimed maintenance as well as implementation of the ANC. The trial court found that the provisions of the ANC granting the wife the right of occupation of the unit in question were void ab initio and unenforceable, and made a maintenance order under s 7(2) of the Divorce Act 70 of 1979 directing the husband to grant the wife the right to occupy the unit.
On appeal to a full Bench, Van der Merwe J held that the finding of the trial court in respect of the provisions of the ANC was incorrect. The prohibition in the life-interest agreement concluded by the husband did not result in the nullity of the cession provided for in the ANC; rather, the cession had to be interpreted to mean that the husband would abandon his right of occupation for the duration of the wife’s right of occupation. Consequently, the trial court ought to have awarded the wife a right of occupation on the basis that she was entitled to it, and not under a discretionary award of maintenance.
The husband’s appeal against the order of the trial court directing him to ensure that the wife was awarded the exclusive right of occupation of the unit was accordingly dismissed. The parties had to pay their own costs.
In conclusion, parties must make proper use of consultations with the notary by asking all the necessary questions in order to ensure that they fully comprehend the meaning of each clause of the ANC prior to it being registered in the Deeds Office.
How to cut years off your home loan
