Family Law: Can you waiver your maintenance rights before you get married?

When love is blind, the justice system will be the voice of reason. In the Supreme Court of Appeal case of ST v CT [2018] 3 All SA 408 (SCA) (“the ST Case”), the SCA held that a prenuptial waiver of maintenance contained in an antenuptial contract was invalid and unenforceable. The result of the ST Case is that one cannot relinquish their right to maintenance prior to marriage.

The majority held that the basis for invalidity was that such a waiver was against public policy, amplified by s 7 of the Divorce Act 70 of 1979 (“the Act”).

“Section 7(2) was enacted (and before it, s 10 of the Matrimonial Affairs Act) to provide a statutory right to a spouse to obtain a maintenance order upon divorce. Public (legal) policy therefore establishes a statutory right to maintenance upon divorce. Such a right cannot be waived prenuptially as it would offend legal policy and hence public policy.” [Paragraph 174]

The majority further stated that public policy is informed by the underlying values and principles of the Constitution. In addition, the traditional view of sanctity of contract has, over the last few years, undergone a profound realignment in view of the Bill of Rights, as stated in the Bredenkamp v Standard Bank (599/09) [2010] ZASCA 75 (27 May 2010, pactum sunt servanda is no holy cow. The determination of whether an agreement offends public policy entails the weighing up of competing values and pactum sunt servanda is but one such value.

The majority in the ST Case proceeded to explain the importance of marriage, which “… gives rise to moral and legal obligations, particularly the reciprocal duty of support upon spouses… these legal obligations perform an important social function…Importantly, the community of life establishes a reciprocal and enforceable duty of financial support between the spouses…” [Paragraph 180].

While concurring with the outcome of the majority’s decision, the minority reasoned that the basis for invalidity was in fact that an agreement concluded prenuptially cannot override a court’s statutory power (in s 7 of the Act) to grant maintenance upon divorce, ie. the court would have an overriding discretion to disregard the prenuptial waiver.

If a court considers that there is good reason not to give effect to the written agreement regarding maintenance, it may refrain from doing so and can then proceed to make an order in terms of s 7(2). In other words, the court has a statutory power to override the prenuptial waiver, which flows inevitably from a ‘proper’ interpretation of the statutory provisions, though it is also supported by considerations of public policy.

Bearing in mind the factors set out above, the impact of prenuptially waiving one’s right to maintenance upon dissolution of the marriage must not be underestimated. A spouse would have no prior knowledge as to the duration of the marriage, what her / his needs and means may be at the time of dissolution of the marriage and, generally, what impending and uncertain events may occur.

It is imperative that parties are fully aware of their rights and obligations when entering into a marriage, civil union or the like. The law has established numerous safeguards to protect spouses and uphold the sanctity of marriage. We strongly advise that partners communicate their financial positions openly and consult a qualified attorney to advise on a suitable marriage regime to govern their intended marriage.

DKVG offers expertise in all matrimonial matters, including advice on suitable marital regimes and preparation of ANC’s.

Written by Megan Manley

For further assistance and guidance, contact Stephen Duffet at sduffett@dkvg.co.za and Megan Manley at mmanley@dkvg.co.za

This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.