SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
2.5 Prenuptial and Postnuptial Agreements Prenuptial and postnuptial agreements are both recognised in South Africa. Prenuptial Agreements Prenuptial agreements are drafted in accord - ance with the Matrimonial Property Act 88 of 1984 (MPA). A prenuptial contract must be entered into by the parties before they enter into a marriage and must be signed before a notary public. The prenuptial contract is registered at the Deeds Office and becomes public record. If parties fail to register their prenuptial agree - ment, it is nevertheless binding between them, but does not affect third parties (eg, creditors). Postnuptial Agreements Postnuptial agreements are regulated by Section 21 of the MPA, which allows parties to jointly apply to a court for leave to change the matri - monial property regime that applies to their mar - riage. The court will consider whether there are sound reasons for the change to the matrimonial property system, and whether sufficient notice has been given to creditors and that no other persons will be prejudiced by the change. If the court is satisfied, it will grant the parties leave to enter into and register a postnuptial contract. Postnuptial agreements that seek to change the matrimonial property system but have not been permitted by order of court in terms of Section 21 are invalid. There is proposed legislation in the pipeline which will change this. Court Handling of Prenuptial and Postnuptial Agreements In considering the division of assets on divorce, a court will first consider the matrimonial prop - erty regime that governs the parties’ marriage. If a valid prenuptial or postnuptial contract is in place, this will determine the matrimonial prop -
If a marriage is dissolved through the death of one of the parties, a spouse may have a main - tenance claim in terms of the Maintenance of Surviving Spouses Act 27 of 1990. Interim Maintenance There is a reciprocal duty of support between spouses throughout the marriage (stante mat - rimonio), meaning that a party is not entitled to change the status quo in respect of maintenance pending divorce. If a party changes the status quo, or if a party requires interim maintenance during the course of the divorce litigation, that party may bring an application in terms of Uniform Rule 43 for an order for the payment of maintenance. A court order in such an application will remain in place until the finalisation of the divorce action. A liti - gating party may also utilise Uniform Rule 43 to claim a contribution towards their legal costs, in order to put the parties on an equal footing. This is also considered a form of maintenance. Ongoing Maintenance The court has the discretion to make any order for maintenance that it finds to be just and equi - table. There are no restrictions in respect of the duration or quantum of maintenance. Mainte - nance orders can be made for a period of time, for the remainder of an ex-spouse’s lifetime, or until the remarriage of the party who receives the maintenance payments. The quantum of the maintenance ordered is based on the party’s reasonable and necessary maintenance needs, as well as the means of the party paying the maintenance.
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