The Supreme Court of Appeal (SCA) has turned down a high court ruling where an Ante-Nuptial Contract (ANC) concluded between a couple was declared null and void.
Despite signing the ANC, the wife approached the Gauteng High Court, Johannesburg, seeking declaratory relief that would recognise that she was married and that the marriage was under customary law, and that it was a marriage in community of property.
The high court found that the couples’ decision to enter into the ANC was only discussed after the customary marriage had been concluded.
Therefore, the court granted the order and thereafter refused leave to appeal.
Unhappy with the decision, the husband approached the SCA.
The husband disputed that he had consented to a customary marriage or that he was married in terms of customary law, by civil law or in COP.
However, he did not dispute that they had participated in certain traditional customs and celebrations after the conclusion of the Lobola contract. He said the celebration was only to embrace their traditional customs.
His case was that the parties had, from the inception of their relationship in April 2019, intended to be married by civil law and out of community of property with an ANC to protect their various interests.
He said the wife had her own business and was a shareholder in another business venture.
He added that his wife had many debts that she had incurred before they met, and he settled all of them.
Meanwhile, he had four children from previous relationships who would be affected if they were married in COP; hence, it was important for him to protect the financial interests of his children.
He said he also wanted to protect his assets against any claims by his ex-wives in the event of his death.
According to the husband, all of these factors led to their decision that they would not be married by customary law, as the default position under that regime was a marriage in COP.
Furthermore, he said that after the traditional customs were concluded, they had consultations with lawyers, and the ANC was thereafter executed and registered.
The agreement was that there would be no COP between them and that the accrual system would be applicable to their marriage.
As part of the agreement, he agreed to donate 50% share in his property in Bryanston and a Mercedes-Benz motor vehicle.
At the SCA, judge Sharise Erica Weiner found that the wife raised different versions and introduced new evidence in her replying affidavit.
It was also held that her evidence vacillated from one version to another, often contradicting herself. She wanted to declare the customary marriage valid and for the ANC to be declared invalid, but, in her replying affidavit, she did not deny that the parties wanted to be married out COP and executed the ANC for that purpose.
“I am of the view that the high court did not properly exercise its discretion in granting the declaratory relief as the disputes in the matter could not be decided on the affidavits,” said judge Weiner.
As a result, the order of the high court was set aside.
IOL