The parties, REM (husband) and VM (wife), were married out of community of property with the accrual system in terms of an antenuptial contract (ANC). They had been married and divorced three times, and the proprietary consequences of their most recent divorce were in dispute. The ANC excluded certain defined assets from the accrual system, including specific trust interests, but provided that contributions to the RMF Trust after marriage would fall within the accrual. The respondent instituted several claims, including enforcement of a clause providing fixed property upon proof that the appellant’s extramarital affair caused the divorce; inclusion of assets held in the Shajo Trust and Capmark Business Trust in the accrual; setting aside a transfer of a CC membership interest to a trust as fraudulent; and inclusion of post-marriage contributions to the RMF Trust in the accrual. The High Court largely found in favour of the respondent, including piercing the trust veneer in respect of certain trusts. The appellant appealed to the Supreme Court of Appeal.
The appeal was upheld in part. Paragraph 2 of the High Court’s order was set aside and substituted with an order that the appellant pay the respondent R2 669 822.78, representing half of the recalculated accrual. The respondent was ordered to pay the appellant’s costs of appeal.
The case is significant for its interpretation of exclusion clauses in antenuptial contracts under the accrual system, clarification of what constitutes assets ‘acquired by virtue of possession’ of an excluded asset, and its development of South African trust law by affirming that a spouse has standing to seek piercing of the trust veneer to protect an accrual claim, while emphasising the high evidentiary threshold for doing so.