‘WHATEVER I ACQUIRE WILL BE MINE AND MINE ALONE’:

MARITALAGREEMENTS NOT TO SHARE IN

CONSTITUTIONAL SOUTH AFRICA
AMANDA BARRATT
Senior Lecturer in Private Law, University of Cape Town

INTRODUCTION
‘Some may think it permissible to contract out of the guiding principles of
equality and non-discrimination within marriage; others may think this is a
retrograde step likely only to benefit the strong at the expense of the weak.’
(Hale JSC in Radmacher v Granatino [2011] 1 AC 534; [2010] UKSC 42 para
135.)
South African matrimonial property law recognises and permits enforcement
of ‘no-sharing’ antenuptial contracts. Spouses can validly conclude antenup-
tial contracts which exclude the default in-community-of-property matri-
monial property regime and which also exclude operation of the statutory
accrual system (Matrimonial Property Act 88 of 1984, s 2).
Recently, several litigants have approached the high courts attempting to
avoid the consequences of their no-sharing antenuptial contracts. They have
tried to claim portions of their husbands’ assets upon divorce. In EA v EC
[2012] ZAGPJHC 219 and JW v CW 2012 (2) SA 529 (NCK), the wives
argued that, despite valid antenuptial contracts excluding community of
property and operation of the accrual system, universal partnerships had been
created between themselves and their husbands, and they were thus entitled
to equitable shares of the partnership property. In Martin v Martin [2011] JOL
28086 (GSJ), the plaintiff presented her claim differently: she initially claimed
redistribution of a share of her husband’s assets in terms of s 7(3) of the
Divorce Act 70 of 1979. Once her counsel realised that the plaintiff had
married in 1986 rather than in 1984 (and was thus debarred from the s 7(3)
remedy), the plaintiff reframed her claim as a claim for ‘maintenance and a
resettlement allowance’ under s 7(2) of Act. In practice, part of her s 7(2)
maintenance claim was substantially similar to a claim under s 7(3): plaintiff
claimed the bulk of her maintenance as a lump sum (R20 million in cash and
immovable property worth R3.5 million). The defendant countered that the
new claim was essentially a claim to asset redistribution ‘under the guise’ of a
s 7(2) maintenance claim (Martin (supra) para 6).
The outcome of Mrs Martin’s substantive claim has not yet been reported
(the November 2011 judgment was concerned only with the amendment of
NOTES 689
pleadings). However, Scholtz AJ remarked in passing that he doubted
whether courts could order lump-sum maintenance in lieu of periodic
payments — what would happen ‘if the recipient of the lump sum were to
re-marry or die shortly after the payment was made? Would the person who
made the payment be entitled to any refund?’ (Martin (supra) para 24.)
Both cases based on universal partnership were unsuccessful. In both cases,
the court ruled that the alleged universal partnerships would contradict the
terms of the antenuptial contracts. In EA v EC (supra), the court held that
evidence proving the existence of the universal partnership was thus inadmis-
sible in terms of the parole evidence rule (para 22). In JW v CW (supra),
the court refused to admit evidence proving the universal partnership on the
grounds that a universal partnership agreement would constitute an invalid
revocation or amendment of the terms of the antenuptial contract, and
antenuptial contracts ‘cannot be revoked or amended in this manner’ (para
36).
This note considers the position of spouses married in terms of no-sharing
antenuptial contracts under current South African matrimonial property law.
In particular, the paper considers whether the current dispensation under the
Divorce Act is fair and constitutional.

BACKGROUND: THE LEGAL POSITION OF THE LITIGANTS

The litigants in the three recent cases fall into the class of people who have
been left without a formal statutory remedy for judicial redistribution of
matrimonial property upon divorce. It is unsurprising that all three cases
involved wives bringing claims to their husbands’ assets — women are usually
the economically weaker spouses at the end of a marriage. This is the
outcome of prevailing social, cultural and economic conditions under which
women tend to assume primary responsibility for non-remunerative home-
care, childcare, and other family nurturing responsibilities, while men tend to
have the space and time to prioritise their remunerative careers. This
gendered division of labour continues to be the norm in most countries in the
21st century (see the international survey by Ira Ellman ‘Marital roles and
declining marriage rates’ (2008) 41 Family Law Quarterly 455 and the detailed
discussion by Martha Fineman The Autonomy Myth: A Theory of Dependency
(2004) 156–204). For a South African perspective, see Elsje Bonthuys
‘Gender and work’ in Elsje Bonthuys & Catherine Albertyn (eds) Gender, Law
and Justice (2007) 244; Brigitte Clark & Beth Goldblatt ‘Gender and family
law’ in Bonthuys & Albertyn (eds) op cit at 195; Debbie Budlender,
Ntebaleng Chobokoane & Yandiswa Mpetsheni A Survey of Time Use: How
South African Women and Men Spend Their Time (2001)).
For couples married out of community of property, the economic conse-
quence of the gendered division of labour is that husbands tend to accumu-
late assets during the marriage, while wives often leave the marriage with ‘no
assets worthy of mention’ (Brand JA in Butters v Mncora 2012 (4) SA 1 (SCA)
(‘Butters (SCA)’) para 1).
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South African policy makers have long been aware of the potential
economic prejudice confronting women married out of community of
property. In 1949, the South African Women’s Legal Disabilities Commis-
sion reported that marriages out of community of property often enabled
husbands to accumulate large estates while their wives found themselves
‘poverty stricken’ at the end of the marriage (Report of the Women’s Legal
Disabilities Commission UG 18/1949 para 121). In 1982, the South African
Law Commission concluded that wives married out of community of
property continued to suffer economic disadvantage: this was the inevitable
consequence of role allocation in terms of which husbands pursued remuner-
ative careers outside of the home, while wives took on non-remunerative
household management and childcare duties (Report (Project 15) Report
Pertaining to the Matrimonial Property Law with Special Reference to the Matrimo-
nial Affairs Act, 1953, the Status of the Married Woman, and the Law of Succession
in so far as it Affects the Spouses RP 26/1982 (1982) 21–3).
In 1984, Parliament took steps to ameliorate the potential inequity of
out-of-community-of-property marriages through the introduction of the
statutory accrual system. In terms of the system, spouses whose estates grow
more than those of their wives or husbands must share their profits with their
partners (Matrimonial Property Act, ss 2–10). Protection was also provided
to couples who had married before introduction of the statutory accrual
system, by amendment to the Divorce Act: the amendment introduced
s 7(3), which gave divorce courts discretion to order transfer of marital
assets from one spouse to the other where the couple had married out of
community of property and without accrual sharing in any form (s 7(3)), if
the court deemed such transfer ‘equitable and just by reason of the fact that
the party in whose favour the order is granted contributed directly or
indirectly to the maintenance or increase of the estate of the other party . . .’
(s 7(4)).
The new ameliorating provisions in the Divorce Act were intended as a
temporary measure, and are available only to spouses who married before the
commencement dates of the Matrimonial Property Act (on 1 November
1984) or the Marriage and Matrimonial Property Law Amendment Act 3 of
1988 (on 2 December 1988 — this Act applies to marriages previously
governed by s 22(6) of the Black Administration Act 38 of 1927). Couples
who marry after these dates do not have the protection of s 7(3). Thus, if
spouses have entered into a no-sharing antenuptial contract (one that
excludes the in-community system and also excludes accrual sharing) after
the relevant commencement dates, divorce courts have no discretion to
order redistribution of marital assets from the richer spouse to the poorer
spouse, even if non-intervention results in ‘great inequity and unfairness’
(obiter per Brand JA Bezuidenhout v Bezuidenhout 2005 (2) SA 187 (SCA)
para 21).
The date-restrictions limiting operation of s 7(3) of the Divorce Act were
controversial at the time of the section’s introduction, and continue to attract
criticism. Several academic authors have argued that the courts should have
NOTES 691
discretion to order asset transfer from the economically stronger spouse to the
economically weaker spouse regardless of when the couple married (B Clark
& B J van Heerden ‘Asset redistribution on divorce — The exercise of
judicial discretion’ (1989) 106 SALJ 243; June Sinclair An Introduction to the
Matrimonial Property Act 1984 (1984) 48–50; June Sinclair, assisted by Jacque-
line Heaton The Law of Marriage (1996) 144; Elsje Bonthuys ‘Family con-
tracts’ (2004) 121 SALJ 879 at 895–6; Jacqueline Heaton ‘Striving for
substantive gender equality in family law: Selected issues’ (2005) 21 SAJHR
547 at 554–7; Jacqueline Heaton ‘Family law and the Bill of Rights’ in Bill of
Rights Compendium (on-line edition) para 3C26; Clark & Goldblatt op cit at
223–5; Nicholas Dillon ‘The financial consequences of divorce: S 7(3) of the
Divorce Act 1979 — A comparative study’ (1986) 29 CILSA 271; Jacqueline
Heaton South African Family Law 3 ed (2010) 136).
In 1988, the South African Law Commission reviewed the operation of
s 7(3) and proposed an amendment in terms of which divorce courts would
have discretion to redistribute assets regardless of the date of marriage ‘where
the court is satisfied that exceptional circumstances exist which justify an
order for the distribution of the assets of the spouses between them on an
equitable basis’ (South African Law Commission Working Paper 26 (Project
12) Review of the Law of Divorce: Amendment of Section 7(3) of the Divorce Act,
1979 (1988)). This proposal was omitted from the Law Commission’s final
report published in 1990 (South African Law Commission Report (Project
12) Report on the Review of the Law of Divorce: Amendment of Section 7(3) of the
Divorce Act, 1979 (1990) (hereinafter ‘SALC Report’)). Reasons for not
extending the judicial discretion to marriages entered into after the existing
cut-off dates included that the judicial discretion to redistribute assets would
‘interfere with the contractual preferences for total separation of property
expressed by the parties at the time of the marriage’, and would create legal
uncertainty about the economic consequences of the divorce (Sinclair
assisted by Heaton op cit at 145, citing ch 3 para 1.3.10 of the SALC Report).
Sinclair & Heaton point out that concerns about legal uncertainty had not
deterred Parliament from introducing the date-limited discretion in 1984,
and that ‘the sacrosanctity subsequently flaunted to justify non-interference
had been sacrificed in 1984 and again in 1988’ (Sinclair assisted by Heaton op
cit at 146). The authors point out that the date restrictions are potentially
unconstitutional: the s 7(3) relief is available to some, but denied to others,
depending on the arbitrary criterion of when they married. This appears to
infringe s 9(1) of the Constitution, which provides that everyone has the
right to equal protection and benefit of law (ibid at 147). More recently,
Heaton has suggested that s 9(1) might also be infringed if the s 7(3) remedy is
denied to those who conclude civil marriages after the cut-off dates, but
made available to those who conclude customary-law marriages, regardless of
the date of marriage — as ruled in Gumede v President of the Republic of South
Africa 2009 (3) SA 152 (CC) (see Jacqueline Heaton ‘Family law’ 2009
Annual Survey of South African Law 440 at 460).
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The following parts of the note explore some of the arguments in favour of
the judicial discretion to redistribute marital assets even where the parties
have concluded no-sharing antenuptial contracts.

SOME LESSONS FROM COMPARATIVE LAW

Recently, there has been considerable debate about no-sharing antenuptial
contracts in England. Much of this debate has been sparked by the United
Kingdom Supreme Court decision Radmacher v Granatino (supra) and by the
English Law Commission’s examination of antenuptial contracts and matri-
monial property law more generally (Law Commission (England and Wales)
Consultation Paper 198 Marital Property Agreements: A Consultation Paper
(January 2011) (hereinafter ‘Law Commission 2011’) and Consultation Paper
208 Matrimonial Property, Needs and Agreements: Supplementary Consultation
(September 2012) (hereinafter ‘Law Commission 2012’)).
In Bezuidenhout (supra), the Supreme Court of Appeal cautioned against an
overreliance on English comparison, pointing out that English statutory
provisions governing distribution of marital property are very different from
ours and must, in turn, ‘be construed against an entirely different common-
law system’ (para 19).
There are indeed key differences. According to English law, marriages are
out of community of property, but divorce courts have very wide statutory
discretion to redistribute marital assets at the time of divorce (Matrimonial
Causes Act, 1973, ss 24 and 25). Section 25 of the Matrimonial Causes Act
lists criteria which courts should consider when making distribution orders,
but has no overall stated objective; for example there is no express require-
ment that orders be ‘fair’ or ‘equitable’. However, in the very influential
decision of White v White [2001] 1 AC 596, the House of Lords held that the
outcome of s 25 orders ‘should be fair’, or at least ‘as fair as is possible in all the
circumstances’ (Lord Birkenhead at 599). While recognising that under-
standings of ‘fairness’ will differ according to place and circumstance, and will
evolve and change over time, the judicial committee concluded (at 605) that
‘there is one principle of universal application which can be stated with
confidence. In seeking to achieve a fair outcome, there is no place for
discrimination between husband and wife and their respective roles.’ If
spouses have contributed equally to the family, it should not matter ‘which of
them earned the money and built up the assets. There should be no bias in
favour of the money-earner and against the home-maker and the child-carer’
(ibid). While it was reluctant to introduce a presumption of equal division,
the court nonetheless held that ‘as a general guide’ equal division ‘should be
departed from only if, and to the extent that, there is good reason for doing
so’ (ibid).
White marked ‘a sea-change in financial orders’ and, together with the
cases that followed, established the ‘sharing-principle’ — in general, marital
assets should be divided equally (Law Commission 2012 para 3.22). The
English Law Commission points out that in this way, English law moved into
NOTES 693
line with the European community-of-property perspective, ie ‘the percep-
tion throughout Europe that equal division was the norm’ (ibid).
Until recently, antenuptial contracts which purported to oust the courts’
statutory discretion to redistribute property at divorce were deemed to be
against public policy and unenforceable. However, in a series of recent
judgments, English courts have begun to regard antenuptial contracts as an
‘increasingly significant factor’ when they exercise their discretion to appor-
tion the marital property (Brigitte Clark ‘Antenuptial contracts after Rad-
macher: An impermissible gloss?’ (2011) 33 J of Social Welfare and Family Law
15). In the Radmacher case, the United Kingdom Supreme Court held that
‘the court should give effect to a nuptial agreement that is freely entered into
by each party with a full appreciation of its implications unless in the
circumstances prevailing it would not be fair to hold the parties to the
agreement’ (Radmacher (supra) para 75). Couples cannot oust the court’s
ultimate discretion to order a fair distribution of marital property, but the
majority judgment seems to create a presumption that antenuptial contracts
will be enforced, provided that they are not unfair (see Peter Harris, Robert
George & Jonathan Herring ‘With this ring I thee wed (terms and conditions
apply)’ (2011) 41 Family Law 367; see also Clark op cit at 18 discussing Lady
Hale’s observation that this presumption shifts the onus of proving unfairness
to the party resisting enforcement of the contract).
South African matrimonial property law is highly weighted in favour of
sharing. The default common-law position is that spouses are married in
community of property and share the joint estate equally when the marriage
ends. If they choose to be married out of community, the accrual system will
apply to their property and they will share equally in the accrual. However,
couples can conclude no-sharing antenuptial contracts excluding both com-
munity of property and accrual sharing. In this situation, the most important
difference between English law and South African law is that South African
courts are apparently obliged to enforce no-sharing antenuptial contracts
(concluded after the relevant commencement dates), even if this results in
‘great inequity and unfairness’ (cf Bezuidenhout (supra) para 21).
In the English context, the primary purpose of no-sharing antenuptial
contracts is to enable couples to decide how to distribute their marital assets
for themselves. Couples agree that they will merely retain their own assets at
divorce rather than relying on the court to make an equitable distribution
order. Lady Hale observes that, in practice, ‘the object of an ante-nuptial
agreement is to deny the economically weaker spouse the [redistribution]
provision to which she . . . would otherwise be entitled’ (Radmacher (supra)
para 137).
In the South African context, the primary purpose of antenuptial contracts
is to change the matrimonial property regime and avoid community of
property (historically, also to avoid placing the wife under marital power).
This note is concerned with antenuptial contracts that go further, and
deliberately exclude operation of the accrual system as well. The only reason
to conclude a no-sharing antenuptial contract of this kind is, as in England,
694 (2013) 130 THE SOUTH AFRICAN LAW JOURNAL

‘to deny the economically weaker spouse the provision to which she would
otherwise be entitled’ in terms of the accrual system.
Thus, despite the different legal mechanisms through which no-sharing is
achieved, and despite the different common-law contexts, no-sharing anten-
uptial contracts have similar outcomes in England and South Africa. In both
contexts, there are indeed circumstances in which enforcement of no-
sharing contracts will be fair and desirable. However, there are also cases
where the effect of a no-sharing antenuptial contract is to protect the
economically stronger spouse’s assets against claims by the economically
weaker spouse.
Because of these fundamental similarities, the recent English debate has
some useful comparative value in the South African context. The debate
raises two key issues. First, there are the autonomy questions: should couples
have autonomy to conclude no-sharing antenuptial contracts? Should courts
be required to enforce the terms of antenuptial contracts, even where these
have ‘unjust and inequitable’ consequences? Should courts even be permit-
ted to do so? Secondly, there are questions about how we should assess
whether or not the outcome of a no-sharing antenuptial contract is ‘fair’.

AUTONOMY, JUDICIAL DISCRETION AND SANCTITY OF

CONTRACT
The recent United Kingdom Supreme Court case Radmacher v Granatino
(supra) posed questions about personal autonomy. In reaching the decision to
recognise and enforce antenuptial contracts, the court was motivated in part
by concern for autonomy:
‘The reason why the court should give weight to a nuptial agreement is that
there should be respect for individual autonomy. The court should accord
respect to the decision of a married couple as to the manner in which their
financial affairs should be regulated. It would be paternalistic and patronising to
override their agreement simply on the basis that the court knows best.’
(Phillips PSC para 78.)
Despite recognising the importance of personal autonomy, the court did
not envisage complete ouster of court supervision: it held that couples have
autonomy to regulate their financial affairs, but only within limits — courts
will not enforce antenuptial contracts that are not ‘freely entered into by each
party with a full appreciation of its implications’ and will not enforce
contracts where this would be unfair under the circumstances prevailing at
the time of divorce (para 75). Thus, in England, ‘fairness’ ultimately trumps
autonomy in the context of enforcement of antenuptial contracts.
The following parts will examine these criteria in more detail. First, our
search for ‘personal autonomy’ should be mindful of the peculiar circum-
stances in which antenuptial contracts are negotiated. Can we really be
certain that the contract was ‘freely entered into?’ Secondly, even if spouses
entered into the contract freely, is it realistic or equitable to enforce rigidly
the contractual terms twenty or fifty years later? These contracts are indeed
NOTES 695
concluded behind a fundamental ‘veil of ignorance’: they purport to regulate
all of a couple’s financial affairs, until one of them dies, regardless of the
unknowable vicissitudes of life. Thirdly, should courts be obliged, or even
permitted, to enforce contracts that have manifestly unfair outcomes?

Freely entered into?

In all jurisdictions, antenuptial contracts must satisfy the usual requirements
for contractual validity and can be set aside on grounds of material mistake, or
where consensus has been improperly obtained, for example through mis-
representation, duress, or undue influence (Chris Pretorius ‘Mistake/absence
of consensus’ in Dale Hutchinson & Chris-James Pretorius (eds) The Law of
Contract in South Africa 2 ed (2012) 83); Dale Hutchinson ‘Improperly
obtained consensus’ in Hutchison & Pretorius (eds) op cit at 116, 136 and
141). (See Ratanee v Maharaj 1950 (2) SA 538 (D) for an example of an
antenuptial contract which was set aside on the ordinary contractual grounds
of undue influence.)
However, in the case of antenuptial contracts, some jurisdictions permit a
wider scope of enquiry when considering whether the agreement was
entered into freely. There is recognition that antenuptial contracts are of an
intensely personal nature and are negotiated under circumstances ‘that are
emotionally charged’ (LeBel J in Miglin v Miglin [2003] 1 SCR 303 para 209).
The unusual nature of antenuptial contracts and the circumstances under
which they are concluded might mean that ‘an act that appears to be
autonomous may in fact be tainted by pressure — from a fiancé(e) or spouse,
from the wider family and community, or simply from the fact that a
wedding has been planned and would now be very difficult to cancel’
(Elizabeth Cooke ‘The Law Commission’s consultation on marital property
agreements’ in Jens M Scherpe (ed) Marital Agreements and Private Autonomy in
Comparative Perspective (2012) 144 at 149).
Thus, evidence of ‘pressure’ falling short of ‘duress’ or ‘undue influence’
might persuade the court not to enforce the agreement. In Radmacher, for
example, the court held that ‘the court may take into account a party’s
emotional state, and what pressures he or she was under to agree’, including
the question of whether ‘the marriage would have gone ahead without an
agreement’ (Radmacher (supra) para 72).
Furthermore, there is ample empirical evidence showing that there is often
a difference in bargaining power between prospective spouses negotiating
antenuptial contracts, and that economically stronger spouses (usually male)
benefit from these inequalities (see Owen Jessop ‘Australia’ in Scherpe (ed)
op cit 17 at 26; G Frommer Brod ‘Premarital agreements and gender justice’
(1994) Yale J of Law and Feminism 229). If bargaining inequality results in a
contract that does not in fact represent the free and autonomous choice of
both parties, it would be an infringement of the autonomy rights of the
weaker party if the court were to uphold the agreement (see the decision of
the German Constitutional Court, BVerfG 6 February 2001 345). In Radma-
cher, the court held that exploitation of a dominant position to secure an
696 (2013) 130 THE SOUTH AFRICAN LAW JOURNAL

unfair advantage would reduce or eliminate the weight which the court
attaches to the antenuptial contract (Radmacher (supra) para 71). South
African courts have been reluctant to consider antenuptial contracts differ-
ently from ordinary commercial contracts. Thus, in Barnard v Barnard 2000
(3) 741 (C), the court refused to set aside a no-sharing antenuptial contract
concluded between a 65-year-old man and a 24-year-old woman (who had
been living with him for five years, and who relied on him and his attorney
for advice and guidance), on the grounds that the circumstances did not
support granting of the restitutio in integrum, the remedy usually employed
when commercial contracts are set aside on the grounds of undue influence.
‘A dangerous gamble?’
A powerful argument favouring court discretion over private autonomy lies
in the inescapable ignorance under which antenuptial contracts are con-
cluded. Couples have no knowledge of what the future will bring and it is
impossible for them to decide whether their antenuptial contract will have an
equitable outcome in the circumstances prevailing when the marriage ends:
‘A couple may think that their futures are all mapped out ahead of them when
they get married but many things may happen to push them off course’ (Hale
JSC in Radmacher (supra) at 175). If misfortune arises through illness or
disability within the family, it is usually the wife who provides the necessary
nurturing to children or elderly parents or parents-in-law (Jonathan Herring
‘Relational autonomy and family law’ in Julie Wallbank, Shazia Choudhry &
Jonathan Herring (eds) Rights, Gender and Family Law (2010) 257 at 271).
The longer the marriage, the less likely it is that the couple will have foreseen
the future outcomes. As the English Law Commission observes, an agree-
ment on property division that will occur only years into the future may be a
‘dangerous gamble’ (Law Commission 2011 para 5.36).
The majority judgment in Radmacher held that antenuptial contracts would
not be enforced if this would be unfair in the circumstances prevailing at the
time of divorce. In her minority judgment, Lady Hale emphasised the
importance of retaining this kind of judicial discretion. She pointed out that
marriages differ from business relationships in fundamental ways. An ante-
nuptial contract ‘is capable of influencing and changing every aspect of a
couple’s lives: where they live, how they live, who goes to work outside the
home and what work they do, who works inside the home and how, their
social lives and leisure pursuits, and how they manage their property and
finances’ (Radmacher (supra) para 175). In particular, in marriage, unlike in
business, the parties might not necessarily act in their individual best interests
or to their personal financial advantage:
‘The couple are bound together in more than a business relationship, so of
course they modify their plans and often compromise their individual best
interests to accommodate these new events. They may have no choice if their
marriage is to survive.’ (Ibid.)

Whose autonomy?
In most legal systems, couples have the freedom to reach private property
settlements at the time of divorce. These private settlements, or ‘consent
NOTES 697
papers’, are usually endorsed by the court as part of the divorce order (see
generally the country overviews in Scherpe (ed) op cit). Judicial enforcement
of an antenuptial contract will be sought by one party to the contract only if
the other party no longer wishes to be bound by its terms. Thus, in practice,
the call for personal autonomy is not really about the freedom of couples to
agree for themselves how to regulate their financial affairs. Rather it is about
‘the freedom to force one’s partner to abide by an agreement when he or she
no longer wishes to do so. . . . It is freedom of contract, but it is therefore
freedom to use a contract to restrict one’s partner’s choices.’ (Law Commis-
sion 2011 para 5.31.)

Freedom to exploit and discriminate?

The reason for retaining court discretion to redistribute assets despite a
no-sharing agreement is to ensure fairness, and, if necessary, protect the
economically weaker party. Usually, the economically weaker party is the
wife, and thus court intervention is also important to ‘combat gender
discrimination and prevent exploitation of the wife’s labour’ (Jonathan
Herring, Peter Harris & Robert George ‘Ante-nuptial agreements: fairness,
equality and presumptions’ (2011) 127 LQR 335 at 338). Herring, Harris &
George deem the majority decision in Radmacher remarkable to the extent
that it permits couples to contract out of this protection. They point out that
‘there are few, if any, other areas of law where a person can engage in gender
discrimination because the other person has consented to the treatment’
(ibid).
For South Africans, this raises important questions about the limits to
personal autonomy and freedom of contract in a constitutional era. Should
couples have the personal autonomy to conclude contracts which reinforce
and exacerbate unfair patterns of gender inequality and disadvantage? The
legislature’s objective when introducing the statutory accrual system was to
ameliorate the financial disadvantages created by the out-of-community-of-
property matrimonial property system. The ameliorating provisions were
particularly intended to offer protection to wives, who are usually the
economically weaker spouses at the end of the marriage as a result of gender
roles they almost inevitably assume. Should couples nevertheless have auton-
omy to contract out of this protection? Should their pre-nuptial decision be
enforced at the end of the marriage even if one of the parties now seeks
protection from the court?
The Constitutional Court considered the constitutional implications of
autonomy and freedom of contract in Barkhuizen v Napier 2007 (5) SA 323
(CC). The majority recognised that pacta sunt servanda is ‘a profoundly
moral principle, on which the coherence of any societies relies’ (Ngcobo J
para 87). The principle also ‘gives effect to the central constitutional values of
freedom and dignity. Self-autonomy, or the ability to regulate one’s own
affairs, even to one’s own detriment, is the very essence of freedom and a vital
part of dignity’ (para 57). Nevertheless, ‘the general rule that agreements
must be honoured cannot apply to immoral agreements that violate public
698 (2013) 130 THE SOUTH AFRICAN LAW JOURNAL

policy’, and, in the constitutional era, public policy requirements must be

founded on the Constitution and constitutional values (para 87).
The dissenting opinion of Moseneke DCJ (with whom Mokgoro J
concurred) gives some guidance on the implications of this principle in the
context of antenuptial contracts:
‘The enquiry must . . . focus on the arrangement that the stipulation contem-
plates, on its impact on the parties, whoever they may be, on its tendency or
likely outcome and ultimately, on its fairness between the parties as measured
against public notions of fairness. This approach is particularly apposite in our
constitutional setting. Trite as it is that our constitutional values allow individu-
als the dignity and freedom to regulate their affairs, they also require that
bargains, even if freely struck, may not steer a course inimical to public notions
of equity and fairness, which are now sourced from constitutional values.’
(Barkhuizen v Napier (supra) para 104.)
The potential disadvantage confronting economically weaker spouses at
the end of a non-accrual out-of-community marriage has been recognised by
Parliament and (obiter) by the Supreme Court of Appeal (see Bezuidenhout
(supra) para 21). It is universally recognised that the economically weaker
spouse will almost always be the wife, because of gender roles usually
assumed during marriage.
Thus, an uncritical enforcement of antenuptial contracts will often have an
inequitable, unfair, and obviously gendered outcome. Not only does the
Divorce Act permit enforcement of contracts of this kind, the Act actively
requires it; divorce courts have no discretion to redistribute marital assets
where couples have married after the relevant commencement dates. In this
way, the Act benefits the strong at the expense of the weak. It perpetuates
gender disadvantage. It renders women ‘poor and dependent when the
marriage ends’. (This phrase is borrowed from Moseneke J’s comments on
the Natal Codes as considered in Gumede (supra) para 36.) Although gender-
neutral in its wording, the provisions of the Divorce Act are highly gendered
in practice. This appears to be indirect discrimination on the grounds of
gender, which is expressly forbidden by the Constitution (s 9(3); see also the
comments by Heaton 2005 SAJHR op cit at 556).
It is submitted that personal autonomy should not extend to contracts
which have potentially unconstitutional outcomes. Divorce courts should
have discretion to intervene and ensure a more equitable financial outcome
though redistribution of marital property.

WHEN WILL THE DIVISION OF MATRIMONIAL PROPERTY BE

CONSIDERED FAIR AND EQUITABLE?
The second issue that the recent English debate highlights is ‘fairness’. How
can we assess whether the division of matrimonial property at the end of the
marriage is fair and equitable?
In England, the current approach to this question is through examination
of the ‘three strands of fairness’ suggested in Miller v Miller; McFarlane v
McFarlane [2006] UKHL 24, [2006] 2 AC 618: (1) Does the distribution of
NOTES 699
property accommodate the spouses’ reasonable financial needs? (2) Does the
property distribution compensate the spouses for financial disadvantage caused
by family-related sacrifice? (3) Does the property distribution constitute
equitable sharing in light of each spouse’s contribution?
South African family law shares some of these underlying concerns, and
the ‘three strands of fairness test’ thus provides a useful lens through which to
examine the legal position of people married in terms of no-sharing agree-
ments.

Need
In South Africa, divorcing spouses can claim periodic maintenance payments
in terms of s 7(2) of the Divorce Act. This claim can be instituted regardless of
which matrimonial property system applied to the marriage. In principle, the
wives in all three recent cases could have instituted claims under s 7(2).
It is important to bear in mind that South African wives married under
no-sharing antenuptial contracts are not entirely without a remedy. This is
especially relevant when comparing South African and English law, because
in England, ‘need’ is the primary consideration underlying property redistri-
bution (Law Commission 2012 para 1.22). In this context, ‘need’ is under-
stood as substantially synonymous with ‘support’ or ‘maintenance’. In
appropriate circumstances, English courts try to use property redistribution as
an alternative to on-going maintenance, with the aim of achieving a clean
break. (However, the courts have held that a clean break will be inappropri-
ate for couples with young children (Law Commission 2012 para 5.15).
Furthermore, there are usually insufficient assets to achieve a clean break, and
on-going maintenance payments are thus ‘relatively usual’ (Law Commission
2012 para 2.11).)
Most divorcing English couples have so little property that all the courts
can achieve is a property distribution allowing each spouse a reasonable
standard of living post-divorce, albeit at a ‘greater level of poverty’ than
before (Law Commission 2012 para 2.15). However, in the case of wealthier
couples, ‘need’ is interpreted generously, with the aim of allowing recipient
spouses living standards commensurate with those enjoyed during marriage
(Law Commission 2012 para 2.14). In so-called ‘big-money cases’, where
there is more than enough money to meet even lavish ‘needs’, the residue of
the marital estates can be distributed according to other principles, such as
‘equal sharing’ (Law Commission 2012 para 2.16).
Section 7(2) of the South African Divorce Act is expressly linked to
‘financial need’. However, the court may make an order for ongoing
maintenance that it deems just, based not only on the needs of the recipient,
but also on factors such as the duration of the marriage and the standard of
living enjoyed. The maintenance claim will be capped by the means and
competing financial obligations of the party from whom maintenance is
claimed. The factors listed in s 7(2) give courts sufficient discretion to make
generous maintenance orders in the case of wealthy spouses. However, the
courts have tended to expect ex-wives to adopt a lower standard of living and
700 (2013) 130 THE SOUTH AFRICAN LAW JOURNAL

to ‘cut their cloth’ to meet their new circumstances (see, for example, Kroon v
Kroon 1986 (4) SA 616 (E); AV v CV 2011 (6) SA 189 (KZP)).
It should be noted that there is no automatic right or entitlement to
post-divorce maintenance. A court may grant or deny maintenance claims at
its discretion according to what it deems just (Botha v Botha 2009 (3) SA 89
(W) para 32). This is one of the most significant differences between property
redistribution (even if aimed primarily at meeting needs) and discretionary
maintenance in the form of periodic payments. The redistribution mecha-
nism can be interpreted as an entitlement to a share of the marital property.
Indeed in England, judicial development since the White case (supra) has
created an expectation of equal sharing, and a strong sense of a property
entitlement, rather than merely a maintenance claim based on demonstrable
dependency and need (Law Commission 2012 para 3.22).
In practice, South African plaintiffs claiming maintenance will be obliged
to detail their needs (see, for example, Botha (supra) para 118). If they are able
to demonstrate real need, they might be able to avoid significant hardship at
the end of the marriage. However, this solution still leaves questions and
issues unresolved: economically weaker spouses (usually wives) who married
under no-sharing antenuptial contracts are still prevented from claiming an
equitable share of the marital property if they married after the relevant
cut-off dates; and there is no express recognition that such wives should be
compensated for the economic and career sacrifices they made for the benefit
of the marriage partnership.

Compensation
The second strand in the fairness test suggested in Miller v Miller; McFarlane v
McFarlane (supra) is ‘compensation’. The basic theory underlying a compen-
sation-based claim is as follows: for the benefit of the family collectively, one
of the spouses (usually the wife) may sacrifice opportunities to earn money,
further her career and enhance her earning potential. If the marriage does not
endure, the partner who made these sacrifices will be at an economic
disadvantage, while the partner who did not sacrifice his career will retain the
benefits and be at a considerable financial advantage. In terms of the
compensation theory, the benefiting partner should compensate the sacrific-
ing partner financially (see, for example, Ira Ellman’s seminal paper ‘The
theory of alimony’ (1989) 77 California LR 1).
The English Law Commission concluded that, in practice, English courts
do not transfer property with the express objective of ‘compensating’ a
spouse who suffers financial disadvantage because of the marriage (Law
Commission 2012 para 2.18). South African courts have also been reluctant
to order property transfers under s 7(3) as a form of ‘compensation’ for career
sacrifice (see, for example, Kritzinger v Kritzinger 1989 (1) SA 67 (A) and the
criticisms of the case by Clark & Van Heerden op cit; Heaton 2005 SAJHR
op cit).
None of the litigants in the recent cases requested compensation of this
kind, and they would have been unlikely to be granted relief on these
NOTES 701
grounds. However, needs-based maintenance claims are often awarded on
the implicit or express understanding that ‘marriage creates a relationship of
dependence’ and that an ex-wife’s inability to support herself financially
results from the career sacrifices she made for the good of the family (Joanna
Miles ‘Principles or pragmatism in ancillary relief: The virtues of flirting with
academic theories and other jurisdictions’ (2005) 19 International Journal of
Law, Policy and the Family 242; see also the comments by Mokgoro J in
Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae)
2003 (2) SA 363 (CC) para 29 and by Fortuin AJ in Kooverjee v Kooverjee 2006
(6) SA 127 (C) para 11.2).

Sharing
Since the White case, English courts have attempted to apply the equal
sharing rule where the spouses have made equal contributions to the
marriage partnership. In this regard the courts have been guided by Lord
Birkenhead’s insistence that there should be no discrimination between the
respective contributions of husbands and wives in their traditional roles
(White (supra) at 605; Law Commission 2011 Part II).
A similar kind of reasoning has been used in South Africa recently in the
context of domestic partnerships. Indeed, the two recent suits based on
‘sharing of partnership assets’ might have been inspired by the contempora-
neous success of domestic partnership suits finalised in the High Courts in
2010: Schrepfer v Ponelat [2010] ZAWCHC 193 and Butters v Mncora [2010]
ZAECPEHC 72. In each of the cases, the stay-at-home partner in a
long-term domestic partnership sued successfully for a share of her out-to-
work partner’s assets on the grounds that they had been involved in a
universal partnership and that the role of traditional housewife should be
recognised as a valuable contribution to the shared enterprise. Both decisions
were ultimately confirmed by the Supreme Court of Appeal (Ponelat v
Schrepfer 2012 (1) SA 206 (SCA); Butters v Mncora (SCA) (supra)).
There is a commonsense ‘fairness’ quality to the universal partnership
cases: in both cases, the partners worked together for the overall success of
their domestic partnerships and, when the partnerships ended, were awarded
shares of the partnership property commensurate with their respective
contributions. (Ms Ponelat was awarded a 35 per cent share, and Ms Mncora
was awarded 30 per cent — the question whether this unequal distribution
was a ‘fair’ division of the property, is beyond the scope of this note.)
In the Butters case, for example, the couple had virtually no assets when
they started living together. During the twenty-year relationship, Mr Butters
built up a successful business and by the time the relationship ended he had
become ‘a wealthy man’ (Butters (SCA) (supra) para 1). Ms Mncora had spent
most of the twenty years performing a ‘traditional housewife’ role (looking
after the home and children) and when the relationship ended ‘owned no
assets worthy of mention’ (ibid).
The Supreme Court of Appeal decided that Ms Mncora and Mr Butters
had entered into a universal partnership, specifically the kind of partnership
702 (2013) 130 THE SOUTH AFRICAN LAW JOURNAL

recognised in Roman-Dutch law as the societas universorum bonorum. The

societas universorum bonorum is not limited to commercial undertakings.
Rather, it is a universal partnership in terms of which ‘the parties agree to put
in common all their property, present and future’ (ibid para 14). Pothier’s
three essential elements for the formation of partnerships must be satisfied:
each partner must bring something into the partnership, ‘whether it be
money, or labour, or skill’; the partnership must be ‘carried on for the joint
benefit of both parties’; and the object of the partnership should be to make a
profit (ibid para 11). It is not necessary for the parties to enter into an express
written agreement for the formation of the partnership; rather, the partner-
ship can be formed by tacit agreement, and such agreement can be inferred
through the conduct of the parties (ibid para 18).
The court then considered whether Mr Butters and Ms Mncora had tacitly
agreed to form a universal partnership by examining the conduct of the
parties over the twenty-year relationship. Was it likely that Mr Butters had
only pretended that he intended to share his fortune with his long-term
partner, while secretly intending that ‘whatever he acquired was his and his
alone’? (ibid para 8). Was it likely that Ms Mncora had worked together with
Mr Butters for almost twenty years with the intention that he would retain
all the profits for himself? The majority of the court concluded that from
Ms Mncora’s perspective, this would be ‘quite remarkable’:
‘It would mean that she intended to contribute her everything for almost 20
years to assist the defendant in acquiring assets for himself only; that in her old
age she would be entirely dependent for her very existence on the benevolence
of the defendant towards her.’ (Ibid para 26.)
The rhetoric of this paragraph has obvious significance for South African
matrimonial lawyers: in terms of South African marriage law, stay-at-home
wives can indeed validly agree to ‘contribute their everything for almost 20
years’ (or for as long as the marriage lasts) and thereby assist their husbands to
acquire assets for the husbands’ profit alone — this is the inherent nature and
inevitable outcome of no-sharing antenuptial contracts.
The marriage relationship is understood as a consortium omnis vitae (a
‘partnership of all of life’). Spouses may not contract out of many of their
consortium duties, for example, the duties of reciprocal support, cohabita-
tion, or sexual fidelity (see Sinclair assisted by Heaton op cit at 423). At
common law, the spouses were also deemed to have entered into a kind of
universal partnership with regard to their property (Voet 23.2.91–92).
However, spouses could indeed contract out of the economic partnership by
concluding an antenuptial contract excluding community of property (Gro-
tius Inleiding 2.12.1).
It was the existence of valid antenuptial contracts excluding community of
property that made it impossible for the wives in JW v CW (supra) and EA v
EC (supra) to prove the existence of a universal partnership. The societas
universorum bonorum that was inferred in the Butters case would have been
impossible to infer in either JW v CW or EA v EC because the written
antenuptial contracts explicitly excluded sharing of this kind.
NOTES 703
In EA v EC, the court refused to admit extrinsic evidence contradicting
the terms of the no-sharing antenuptial contract. The court went on to
examine the possibility that enforcement of a no-sharing antenuptial contract
might have constitutional implications, but concluded that refusal to permit
leading of inadmissible evidence, would not ‘perpetuate discrimination
against women. Nor would it offend the rights and values of equality, dignity,
and autonomy of women as enshrined in our Constitution’ (Kathree-
Setiloane J in EA v EC (supra) para 26). In reaching this conclusion,
Kathree-Setiloane J was guided by the fact that the defendant had not alleged
that she had been forced into a contract that infringed her rights to dignity or
equality (ibid para 24). Nor did she allege that she had been induced to enter
into the antenuptial contract by fraud, duress or mistake (ibid). Indeed, she
was ‘aware of exactly what she was doing’ and was exercising her free and
autonomous choice (ibid para 25). The judge went on to argue that ‘most
women today are strong, intelligent, educated, and independent. They share
equally in the support of their homes and families — and will stand for
nothing but equality in their marriages — regardless of their socio-economic
circumstances’ (ibid para 27).
This is no doubt true for many women and many wives in contemporary
South Africa. Certainly, it is undesirable to perpetuate gendered stereotypes
of female dependency. Unfortunately, however, empirical evidence contin-
ues to suggest that gender equality within marriage (and within society
generally) remains largely aspirational at present. Women are not yet on equal
terms with men economically. The wage gap between men and women
remains significant, and does not appear to be closing, particularly in the case
of poorer women (see, for example, the recent study by Haroon Bhorat &
Sumayya Goga ‘The gender wage gap in the post-apartheid South African
labour market’ University of Cape Town. Development Policy Research Unit
Working Paper 12/148 (July 2012)). Women continue to provide the bulk of
childcare and other family nurturing. This, as Mokgoro J has noted, has a
detrimental impact on the ability of wives and mothers to further their
careers and accumulate assets during their marriages, and will continue to
have a negative impact post-divorce (Bannatyne (supra) para 29).
In the light of prevailing socio-economic realities, why do strong, intelli-
gent, empowered women sign up for no-sharing of the matrimonial
property? Perhaps, for some of these women, no-sharing is a good option:
they are equal partners in the marriage and suffer no economic disadvantage.
However, many wives do indeed suffer financial disadvantage in the end.
After all, this is why the wives in the recent cases approached the court. It is
possible that wives who agree to no-sharing contracts ‘think that their futures
are all mapped out ahead of them’ and do not expect to end up as one of the
many women who make career sacrifices when children are born or when
misfortune strikes the family. They probably do not expect to find themselves
divorced after making this kind of financial investment in their marriage.
Perhaps they are blinded by love. As the English Law Commission notes,
those who marry ‘are adults and can take their own decisions, but it is a
704 (2013) 130 THE SOUTH AFRICAN LAW JOURNAL

matter of experience that most people are willing to agree, when they are in
love, to things that they would not otherwise contemplate’ (Law Commis-
sion 2011 para 5.27).
However, regardless of how freely or autonomously wives enter into
no-sharing antenuptial contracts, we must still ask whether it should be
‘permissible to contract out of the guiding principles of equality and non-
discrimination within marriage’ in a way that is ‘likely only to benefit the
strong at the expense of the weak’ and render women ‘poor and dependent
when the marriage ends’.

CONCLUSION
The South African Parliament has recognised that out-of-community mar-
riages may have prejudicial financial outcomes for women. The statutory
accrual system and s 7(3) of the Divorce Act were specifically intended to
ameliorate this problem. However, it appears that, based on considerations of
personal autonomy, couples are permitted to conclude no-sharing antenup-
tial contracts which exclude the statutory protection; courts have no discre-
tion to intervene, even if non-intervention results in ‘great inequity and
unfairness’.
The current English debate suggests that while personal autonomy is
important, it should not be the most important consideration when dividing
marital property. Courts should retain discretion to decide whether enforce-
ment of the antenuptial contract is fair in the circumstances prevailing at the
end of the marriage. When deciding what is fair, the courts should consider
not only the needs of the parties, but also whether there is equitable sharing
of the property, bearing in mind that ‘in seeking to achieve a fair outcome,
there is no place for discrimination between husband and wife and their
respective roles’ (White (supra) at 605).
As Lady Hale noted in the Radmacher case, court intervention protects the
party in the weaker economic position. In practice, this tends to be the wife
(Radmacher (supra) para 137). English scholars have suggested that antenuptial
contracts which purport to exclude the court’s protection discriminate
against wives. They caution that no-one should be permitted to ‘engage in
gender discrimination’ just because ‘the other person has consented to the
treatment’ (Herring et al op cit at 338).
It is submitted that in the current South African socio-economic context,
no-sharing antenuptial contracts often have a gendered discriminatory out-
come. While personal autonomy is an important interest, couples should not
be free to contract out of the principles of equality and non-discrimination
within marriage. Rigid and compulsory enforcement of no-sharing con-
tracts, without permitting courts the discretion to investigate whether
enforcement would result in substantial injustice to the parties concerned,
could infringe the substantive equality rights of women. This outcome
would surely be in conflict with the Bill of Rights and the objectives of the
South African Constitution.