Is an agreement between spouses contrary to the ANC valid?

"Can spouses conclude an agreement which is contrary to their antenuptial contract and which is valid and enforceable?"

An antenuptial contract or ANC, entered into before the conclusion of a marriage, is used to govern the matrimonial property system between spouses. 

But what happens if the parties to a marriage conclude a separate agreement which purports to change some of the consequences that would apply to the marriage in terms of the ANC. Is this enforceable or are all agreements between spouses which purport to affect the marriage consequences invalid?

This question recently served in front of the Supreme Court of Appeal (SCA) in the case of B v B (820/2021) [2022] ZASCA 123. In this case, in anticipation of marriage Mr and Mrs B concluded an ANC which determined the marriage to be out of community of property with the exclusion of the accrual system. Subsequent to the conclusion and registration of the ANC but before the parties were married, they concluded a further written agreement in terms of which Mr B agreed to amongst other things, donate certain assets to Mrs B, pay for certain costs for as long as Mrs B lived and pay a monthly lifelong maintenance to Mrs B in the event of divorce. 

The parties eventually divorced and the enforceability of this separate agreement came into dispute when Mrs B wished to enforce the terms thereof. In assessing the enforceability of this separate agreement, the SCA determined the following:
 

• The primary objective of an ANC is not to create obligations, but to determine the matrimonial property system between spouses by excluding or varying the normal patrimonial consequences of marriage.
• The separate agreement did not aim to vary the ANC or the matrimonial consequences of the marriage and the estates of the parties remain separate. The intention of the parties was also clear that the parties never intended the agreement to rectify or amend the ANC.

Accordingly, the SCA found that the ANC and separate agreement were both valid and enforceable and could co-exist with the legal effect that a portion of the patrimonial consequences upon death or divorce would flow from the separate agreement and not only from the matrimonial regime. 

By doing so the SCA confirmed that there is no bar on all agreements between spouses out of community of property. Such a prohibition would only apply to an agreement that aims to have the effect of changing the parties' matrimonial regime without being sanctioned by a court order. If that is not the case, then there is no general prohibition on the capacity of spouses to contract in respect of other agreements which could bind their estate.

Needless to say, there may be a fine line between a valid, separate agreement and one which may be unenforceable if it goes too far. Should you have or consider concluding a separate agreement with your spouse, it may be advisable to consult with your family attorney to ensure that such an agreement is valid and enforceable and able to co-exist with your ANC, should you have one.