Van der Merwe v Van der Merwe

The parties married on 8 January 2011 after signing a power of attorney authorising an attorney to execute an ante-nuptial contract (ANC) on their behalf. The registered ANC expressly excluded community of property and the accrual system. During divorce proceedings, the respondent alleged that it was the parties’ common intention that the accrual system should apply, and that the exclusion of accrual in the ANC resulted from a mistake or an assurance that the contract would later be amended. She sought rectification of the ANC to include accrual. The appellant denied any such common intention, asserting that he only agreed to marry on the basis that accrual was excluded. The trial court granted a declaratory order effectively applying the accrual system, and the Full Court upheld that decision. The matter came before the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the Full Court was set aside and replaced with an order upholding the appeal, setting aside the trial court’s decision, dismissing the respondent’s counterclaim for rectification, and ordering the respondent to pay the appellant’s costs relating to the rectification dispute.

The case reaffirms the strict requirements for rectification in South African law, particularly in the context of ante-nuptial contracts. It underscores the importance of certainty and formality in matrimonial property regimes, confirms that courts cannot override clear contractual terms absent a legally recognised ground, and clarifies the operation of section 2 of the Matrimonial Property Act regarding the express exclusion of accrual.