H M v A M

The parties were married out of community of property with exclusion of the accrual system. In April or May 2014, the respondent (wife) authored a written postnuptial agreement and presented it to the appellant (husband) for signature. The husband refused to sign it twice, telling her its content was ridiculous. On 10 November 2014, the appellant signed the agreement, with no mention of divorce by either party at that time. The agreement purported to set aside the marriage contract, entitle the wife to half of the husband's estate, and require him to pay 50% of his net income/dividend and pension to her monthly. After signing, the parties continued normal marital relations, including conjugal rights. On 30 November 2014, the wife discovered evidence of the husband's extramarital affair and a draft settlement agreement on his phone. During the confrontation that evening, the husband mentioned divorce for the first time. Divorce summons was issued on 15 January 2015. The wife counterclaimed seeking a declaratory order that the agreement was valid and binding, arguing it was concluded in contemplation of divorce.

• Whether a postnuptual agreement could be valid and enforceable as a settlement agreement when concluded before divorce was contemplated by the parties
• Whether the agreement was concluded in contemplation of divorce
• Whether an agreement can be made an order of court under section 7(1) of the Divorce Act when it does not relate to a legal issue or lis between the parties
• Who bears the onus of proving that divorce was contemplated at the time of signing the agreement

1. The appeal was upheld with costs, including the costs of two counsel. 2. The order of the High Court was set aside and replaced with: 'The appeal is dismissed with costs.' 3. The matter was remitted to the Regional Court for the Regional Division of Mpumalanga at Mbombela, to finalise maintenance for the respondent and for any dependent child.

For a postnuptial agreement to be valid and enforceable as a settlement agreement capable of being made an order of court under section 7(1) of the Divorce Act 70 of 1979, divorce must have been in the actual contemplation of the parties at the time the agreement was concluded. While it is not necessary for divorce proceedings to have been instituted at the time of signing, the agreement must, either directly or indirectly, relate to a legal issue or lis between the parties and must bear some relation to litigation. The party relying on such an agreement bears the onus of proving on a balance of probabilities that divorce was contemplated at the time of conclusion. An agreement concluded merely as an 'insurance policy' against a possible future divorce, without divorce being in contemplation at the time of signing, cannot constitute a valid settlement agreement.

The Court noted that while the language of the agreement at first blush might appear to support the contention that it was not an agreement at all, but rather a unilateral act of waiver or abandonment of matrimonial property rights, it was not necessary to decide this point for purposes of the appeal. The Court was prepared to accept for purposes of its judgment that the agreement was entered into between the parties, focusing instead on the central question of whether it was made in contemplation of divorce. The Court also observed that the agreement would in any event have been invalid as an attempt to change the matrimonial property regime without court approval as required by section 21 of the Matrimonial Property Act 88 of 1984, though the respondent wisely abandoned this basis for her claim.

This case establishes important principles regarding the validity of postnuptial agreements in South African law, particularly in the context of divorce settlements. It clarifies that for an agreement between spouses to be enforceable as a settlement agreement under the Divorce Act, divorce must have been in the actual contemplation of the parties at the time of conclusion, not merely a future possibility. The case reinforces that courts will scrutinize whether agreements truly relate to a legal issue or lis between parties before making them orders of court. It also demonstrates the importance of timing and the parties' subjective intentions in determining the validity of matrimonial agreements, and places the onus squarely on the party relying on such an agreement to prove that it was concluded in contemplation of divorce.