ST v CT

The parties married in Hamburg, Germany on 17 July 1992 under an antenuptial contract with accrual. The appellant (husband) was a 53-year-old senior advocate; the respondent (wife) was a 28-year-old German lawyer. The contract contained a waiver clause (clause 9) whereby the wife waived her right to claim maintenance upon dissolution of the marriage in exchange for donations: a half-share in a property and R300,000. The contract also excluded from accrual certain assets, including inheritances, donations between spouses (contrary to s 5(2) MPA), and pre-marital assets and their proceeds. The marriage lasted 24 years and broke down in 2010. The respondent instituted divorce proceedings claiming spousal maintenance, full disclosure under s 7 of the Matrimonial Property Act 88 of 1984, and half of the accrual. The appellant counterclaimed for property-related expenditure and return of movables. The trial lasted 53 court days with an 8,000+ page record. The appellant failed to make proper discovery and disclosure of his financial affairs, particularly regarding excluded assets, offshore trusts and companies, and his interests in wine farms in Wellington (Western Cape) and France.

• Whether a prenuptial waiver of the right to claim maintenance upon dissolution of marriage is per se contrary to public policy and thus invalid and unenforceable
• Whether the court has an overriding discretion to award maintenance notwithstanding a waiver provision
• The scope and interpretation of sections 7(1) and 7(2) of the Divorce Act 70 of 1979
• The burden of proof regarding excluded assets in accrual calculations
• The duty of full disclosure under section 7 of the Matrimonial Property Act 88 of 1984
• Whether corporate structures and offshore trusts were 'shams' or whether the appellant was the beneficial owner of assets held by companies
• Whether a living annuity forms part of a spouse's estate for accrual purposes
• The proper approach to calculating accrual where both excluded and non-excluded resources contributed to asset values
• Entitlement to restitution of donations made in exchange for an invalid waiver

The appeal was upheld in part. The high court's order was substantially varied. The accrual award was reduced from over R22 million to R8,892,482 (respondent's share: R4,376,241 net). Maintenance was reduced from R30,000/month to a declining scale (R18,500, R13,500, R8,500 per month). The respondent was ordered to transfer her half-share in the Rondebosch property to the appellant free of consideration. The appellant was given until 1 December 2018 to pay the accrual amount with interest from judgment. The respondent could remain in the property rent-free until one month after payment. Transfer costs to be shared equally. Each party to bear their own costs of appeal. The high court's costs order remained undisturbed.

(1) A prenuptial waiver of the right to claim maintenance upon dissolution of marriage is unenforceable in South African law - either because it is per se contrary to public policy (Majiedt JA) or because the court retains an overriding discretion under ss 7(1) and (2) of the Divorce Act to award maintenance notwithstanding any written agreement (Rogers AJA). (2) In accrual calculations, the spouse asserting that an asset owned by the other spouse is an excluded asset bears the onus of proving both the exclusion and the nexus between the excluded asset and the current asset. (3) A party required to make disclosure under s 7 of the Matrimonial Property Act must establish proper compliance with that statutory duty; failure to do so may warrant adverse inferences. (4) A living annuity purchased by a spouse does not form part of that spouse's estate for purposes of calculating accrual, as the capital belongs to the insurer and the spouse has only a conditional right to future annuity payments. (5) Where both excluded and non-excluded resources are applied to acquire or improve an asset, the extent to which the asset's value at divorce should be included in accrual must be determined by assessing a fair and reasonable ratio between the excluded and non-excluded resources, adjusted for inflation, rather than simply using nominal amounts. (6) When donations made in exchange for an invalid maintenance waiver must be restored, restitution principles apply (either condictio indebiti or restitutio in integrum).

Majiedt JA: (1) Expressed the view that prenuptial waivers of maintenance are fundamentally different from waivers upon divorce of the right to seek variation (as in Schutte v Schutte), because at divorce both spouses have full knowledge of their financial means and needs, whereas before marriage they do not. (2) Observed that public policy, while now rooted in constitutional values, may extend beyond the Constitution itself. (3) Noted that the traditional sanctity of contract has undergone profound realignment due to the Bill of Rights, and that contractual autonomy is not the antithesis of fundamental rights but part of freedom and dignity. (4) Emphasized the importance of marriage as a social institution with reciprocal duties of support. Rogers AJA: (1) Advocated for South African law to follow the "nuanced and enlightened approach" of England (Radmacher v Granatino), Canada (Miglin v Miglin) and Australia, which respect prenuptial and postnuptial agreements while retaining judicial discretion to prevent unfairness through a contextual, two-stage assessment. (2) Criticized the majority's approach as overly paternalistic and as promoting protection to the complete exclusion of autonomy. (3) Suggested that ss 7(1) and (2) should be interpreted to allow courts to balance party autonomy with protection against unfairness on a case-by-case basis. (4) Observed that prenuptial waivers might be appropriate in short marriages or where pre-marital assets are being protected. (5) Expressed the view that prenuptial waivers are not contrary to public policy per se but should be subject to judicial scrutiny at the time of divorce. Joint judgment: (1) The trial judge made unnecessary personal remarks about the appellant but was not patently biased. (2) The corporate structures involving Gamsberg, Tartan, the offshore trusts, and the operating companies were likely genuine estate planning rather than devices to conceal assets from the respondent. (3) The French wine farm (Mas d'Andrum) ownership could not be definitively determined due to insufficient evidence. (4) The high court's characterization of the respondent's work for Mont du Toit as "sheltered employment" was demeaning and unwarranted. (5) The high court's finding that the appellant "planned this divorce even before he concluded this marriage" was unjustified.

This is a landmark judgment in South African matrimonial law on several fronts: (1) It is the first SCA decision to comprehensively address the validity of prenuptial waivers of maintenance, holding them unenforceable (though the judges differed on whether they are void ab initio or subject to judicial discretion). (2) It clarifies the burden of proof in accrual calculations: the spouse claiming accrual must prove the other spouse's assets and their value; the spouse claiming exclusion bears the onus of proving exclusion and the nexus between excluded assets and current assets. (3) It establishes that a living annuity does not form part of a spouse's estate for accrual purposes. (4) It provides guidance on calculating accrual where both excluded and non-excluded resources contributed to an asset's value, requiring a fair ratio assessment rather than nominal value inclusion. (5) It reinforces the stringent duty of full disclosure under s 7 MPA and the consequences of non-compliance. (6) It demonstrates the limited circumstances in which appellate courts will interfere with credibility findings while emphasizing that poor credibility does not warrant ignoring objective evidence on asset ownership. The case reflects modern tensions between contractual autonomy and protection in family law, with Rogers AJA advocating for alignment with progressive Commonwealth approaches (Radmacher, Miglin) that respect party autonomy while retaining judicial discretion to prevent unfairness.