By Sanette Viljoen
Facts: John and Sarah are married out of community of property. After many years they have built up a number of successful businesses. They decided together to raw up an agreement that stipulated that they see themselves as married in community of property. The marriage is floundering and they want to divorce. However, John now claims that they are still married out of community of property and that the agreement they drew up is invalid.
Answer: It must always first be established whether a valid marriage exists. And secondly, whether the postnuptial contract could have changed the matrimonial property dispensation in a legal way.
To determine whether your marriage is a valid marriage, one has to consider the requirements of several acts. In this case it would be advisable to approach your attorney. In terms of the above-mentioned facts it is assumed that John’s and Sarah’s marriage is valid.
The question then is whether the contract they entered into could legally change their matrimonial property dispensation in a way that can be implemented should they divorce.
The Constitutional Court recently had to decide whether a postnuptial contract entered into without the court’s supervision can legally change the matrimonial property dispensation. It was ruled that contracts drawn up at home were not valid and enforceable if it was not confirmed by a court order.
The court confirmed that the only way in which married couples could legally change their matrimonial property dispensation was to approach the court in compliance with section 21 of the Matrimonial Property Act.
It would therefore be advisable to ask your attorney to have your postnuptial contract confirmed by the court to legally change your matrimonial property dispensation.