The parties were married out of community of property with exclusion of the accrual system. In April or May 2014 the respondent drafted a written document in which the appellant purportedly undertook to set aside the antenuptial contract, give the respondent half of his estate, and maintain her by paying 50% of his income and pension. The appellant initially refused to sign the document but eventually signed it on 10 November 2014. At that time, no divorce was discussed and the parties continued their normal marital relationship. Following the respondent’s discovery of the appellant’s extramarital affair and a draft divorce settlement on his phone on 30 November 2014, the marriage broke down. Divorce summons were issued in January 2015. The respondent counterclaimed for a declaration that the agreement was valid and enforceable as a settlement concluded in contemplation of divorce. The Regional Court found the agreement invalid, but the High Court overturned that decision, holding it to be a binding settlement agreement. The appellant appealed to the Supreme Court of Appeal.
The appeal was upheld with costs, including the costs of two counsel. The High Court’s order was set aside and replaced with an order dismissing the appeal with costs. The matter was remitted to the Regional Court at Mbombela to finalise maintenance for the respondent and any dependent child.
The case clarifies that a postnuptial or settlement agreement can only be enforced in divorce proceedings if it was concluded in contemplation of divorce. It underscores the evidentiary burden on a party relying on such an agreement and affirms that normal continuation of the marital relationship may negate an inference that divorce was contemplated. The judgment reinforces principles governing settlement agreements and their relationship to divorce litigation.