Prior to getting married, the soon-to-be bride asked her fiance to conclude an antenuptial agreement, but he replied over Whatsapp that, “No paper will give you more security than my love for you.”
She now claims division of the joint estate (the couple were married in community of property). Defendant pleaded that they had intended their marriage to be out of community of property, but by mutual error had omitted to enter into an antenuptial agreement.
Sievers AJ discusses the validity of the post-nuptial agreement; s 21(1) of the Matrimonial Property Act 88 of 1984; the case law; that the written agreement not refer to any oral agreement and does not purport to be the written recordal of a prior oral agreement.
It is ordered that the postnuptial agreement is void and of no force and effect, as a result of which the parties are married in community of property.
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
In the matter between: Case No: 8357/16
S S K (BORN P) PLAINTIFF
|F J A K |
F J A K N.O.
FRANS MATTHEUS BREWIS N.O.
ANNEKE PRETORIUS N.O.
THE MASTER OF THE HIGH COURT, PRETORIA
|FIRST DEFENDANT |
JUDGMENT DELIVERED ON 25 FEBRUARY 2020
 The plaintiff and the first defendant (hereinafter “the defendant”) were married to each other at Pretoria on 18 October 2014 in community of property.
 In May 2016 the plaintiff instituted an action claiming, inter alia, division of the joint estate.
 The defendant pleaded that due to an oversight and the stressful circumstances during the period leading up to the marriage, the parties did not enter into an antenuptial agreement.
 The defendant pleaded further that at all material times the parties had intended that their matrimonial regime would be out of community of property, but that due to a mutual error they had omitted to enter into an antenuptial contract prior to the marriage.
 On 26 and 27 July 2015 the parties signed a postnuptial agreement in terms of which the marriage was to be one out of community of property with the exclusion of the accrual regime.
 No application was bought by the parties to postnuptially change the matrimonial property system applicable to their marriage as provided for by section 21(1) of the Matrimonial Property Act, No 88 of 1984. A draft application was prepared but not proceeded with.
 The plaintiff pleaded that the defendant had advised her that their marriage would be conducted on the basis of their reciprocal love for one another and that no agreements would be entered into between them. This is reflected in WhatsApp exchanges between the parties in the month before they were married where, in response to a request by the plaintiff that they conclude an agreement, the defendant advises that “Geen papier gaan jou meer sekuriteit gee as my liefde vir jou … ”
 The plaintiff admitted signing the postnuptial agreement on 26 July 2015 but alleged that she signed it as a result of duress and that it was thus void and of no force and effect.
 The defendant filed a claim in reconvention in which he sought, inter alia, an order declaring that the parties’ postnuptial contract dated 27 July 2015 at all relevant times, inter partes, remained of full force and effect and that between them no community of property exists.
 On 19 May 2017 Steyn J ordered, by agreement between the parties, that there be a separation of issues in terms of the provisions of Uniform Rule 33(4). The separated issue to be determined at the separate trial action was ordered to be:
“2.1 Whether the Post-Nuptial Agreement dated 27 July 2015 concluded between the Plaintiff and the First Defendant is valid and binding and of full force and effect, and as a result of which the parties inter partes are married out of community of property with the exclusion of the accrual system, alternatively;
2.2 Whether the Post-Nuptial Agreement dated 27 July 2015 concluded between the Plaintiff and the First Defendant is void and of no force and effect as a result of which the parties are married in community of property.”
 The issue stipulated does accordingly not concern an unregistered antenuptial contract but rather an attempt to vary the matrimonial property regime applicable to the marriage by way of a postnuptial contract.
(1) A husband and wife, whether married before or after the commencement of this Act, may jointly apply to a court for leave to change the matrimonial property system, including the marital power, which applies to their marriage, and the court may, if satisfied that:
a. There are sound reasons for the proposed change;
b. Sufficient notice of the proposed change has been given to all the creditors of the spouse; and
c. No other party with be prejudiced by the proposed change,
APPLICABLE LEGAL PRINCIPLES
[12) The Matrimonial Property Act 88 of 1984 (“the Act”) provides as follows: – “21. Change of Matrimonial property system order that such matrimonial property system shall no longer apply to their marriage and authorise them to enter into a notarial contract by which their future matrimonial property system is regulated on such conditions as the court may think fit.”
[13) In Honey v Honey 1992(3) SA 609 (W) the parties were married out of community of property, having concluded and duly registered an antenuptial contract which provided for the application of the accrual system. Several years after the marriage they concluded a further written agreement excluding the accrual system. This agreement was not entered into with the leave of the court as provided for in section 21(1) of the Act nor registered in the deeds registry. The full bench held that the agreement was void and unenforceable even between the parties inter se.
 In this division in SB v RB 2014 JDR 0818 (WCC) the parties were similarly married out of community by antenuptial contract with the express exclusion of the accrual system. The parties had separated but reconciled pursuant to a letter written by the defendant to the plaintiff offering to change their marriage to one in community of property, which offer she accepted.
 In SB v RB the court quoted the following (at para 30):
“J Heaton: South African Family Law (3rd ed) p103 explains the principle of immutability in South African matrimonial property law as follows:
‘Until the commencement of the Matrimonial Property Act 88 of 1984, the immutability principle applied in our matrimonial property law. This meant that once a marriage had been entered into, the matrimonial property system chosen by the spouses remained fixed and could not be changed. (Union Government (Minister of Finance) v Larkan 1916 AD 212; Honey v Honey 1992(3) SA 609 (W). This rule had serious disadvantages as it often happens that the financial position of spouses changes to such an extent during their marriage that the system they initially chose becomes totally inappro priate . For this reason, the legislator relaxed the immutability principle in the Matrimonial Property act by creating several mechanisms for effecting a postnuptial change of the matrimonial property system.
Firstly, for a limited period, which has expired, certain spouses were permitted to incorporate the accrual system into their marriage out of community of property simply by concluding a registered notarial contract …
Secondly, in limited circumstances, the court has the power to order the immediate division of the spouses’ matrimonial property and to change the couple’s matrimonial property system at the request of one of the spouses.
Section 20 of the Matrimonial Property Act empowers the court to order the immediate division of the joint estate and to change the spouses’ matrimonial property system if the conduct of one of them seriously prejudices or will seriously prejudice the interests of the other spouse in the joint estate. Section 8 of the Act confers a similar power on the court in respect of immediate division of the accrual …
The last mechanism for alteration of the matrimonial property system which the Matrimonial Property Act introduced is the joint application to court in terms of section 21(1) for permission to change the matrimonial property system …’
 Having considered the above the Court in SB v RB, in dealing with the plaintiff’s claim for division of the joint estate held that:
“However , because the parties never applied to court as envisaged ins 21(1), the plaintiff is hit by the immutability principle and is left without any remedy to enforce the June 2004 agreement.”
 In Ex Parle Spinazze & Another NNO 1985(3) SA 650 (A) Corbett JA confirmed that a verbal antenuptial contract was valid and enforceable provided that it could be satisfactorily proved.
 In Odendaal v Odendaal 2002 (1) SA 763 (W) the full bench held that the onus was on the party who relied upon an oral agreement specially pleaded by him or her which varied the normal matrimonial property regime. The respondent in Odendaal was unable to discharge this onus as his evidence reflected that he had been ignorant of the accrual system and its application and implications at the time of contracting.
[19) In the present matter the defendant has not specially pleaded nor satisfactorily proved the terms of an oral antenuptial contract. In any event the issue before the court by agreement is whether the written postnuptial agreement is valid and binding.
 This written postnuptial agreement expressly records in its preamblethat while the parties had intended to conclude an agreement they “nagelaat het om voorhuwelik ‘n huwelikskontrak aantegaan”. It does not refer to any oral agreement and does not purport to be the written recordal of a prior oral agreement.
 In the defendant’s counterclaim it is similarly only the written postnuptial agreement that he seeks to enforce inter partes.
 The parties did not jointly apply to a court for leave to change the matrimonial property system applicable to their marriage and they were accordingly not authorised, as required by section 21 of the Act, to enter into a postnuptial contract to do so.
 The postnuptial agreement dated 27 July 2015 is accordingly void and of no force and effect by virtue of non-compliance with the provisions of Section 21 of the Matrimonial Property Act, Act 88 of 1984, and as a result, the parties are married in community of property.
 It is accordingly unnecessary to decide the issue of whether the plaintiff signed the postnuptial agreement under duress as alleged by her.
 It is ordered that the postnuptial agreement dated 27 July 2015 is void and of no force and effect, as a result of which the parties are married in community of property.
 The costs in respect of the hearing of the separated issue shall stand over for determination in the action.
JUDGE OF THE HIGH COURT