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No maintenance post-divorce?

I often get clients who consult me with a view at having an antenuptial contract drafted but who want a clause in the contract saying they won't have to pay their spouse personal maintenance if they divorce.

Such a clause may for example state that "neither party is under any obligation to maintain, support or to make any form of financial provision to or for the benefit of the other party at any time after separation or divorce". The question arises as to whether the Registrar of Deeds should allow such a clause to be registered at all in an antenuptial contract.

A similar possible clause, or one in addition to the above mentioned, may read along the lines of "prospective husband and prospective wife waive the right to spousal maintenance, both temporary and permanent". Here again the question arises as to whether the Registrar of Deeds should be allowed to register such a clause in an antenuptial contract.

Some would argue that clauses such as the abovementioned in an antenuptial contract are "superfluous" and "contra bonos mores". "Contra bonos mores" means "against good morals / public policy / offensive to the conscience and to a sense of justice".

Usually my clients who request clauses such as these are those who have more assets and a higher earning potential than the person they want to marry. They usually insist on these clauses as well as an antenuptial contract with the exclusion of the accrual system. What this matrimonial regime basically comes down to is "what's yours is yours and what's mine is mine".

Usually by law no matter how you are married, if you have got somebody accustomed to a certain standard of living during the course of the marriage there is a duty to maintain them financially post-divorce, for a year or two or even life-long, depending on the length of the marriage. Not everybody is prepared to do this, and this is the "deal breaker" in many situations where parties decide not to marry.

The reason why some people argue that the clauses abovementioned are "contra bonos mores" is that our divorce law allows for personal maintenance post-divorce, and to therefore have a clause in an antenuptial contract excluding this, is against good customs and shouldn't be allowed. A divorce court would probably have the discretion in overriding such a clause even if it is allowed to be registered by the Registrar of Deeds.

I personally am in favour of a clause like that being registered. If that is the intention of the parties, then I see no reason why it should not be allowed to be incorporated and registered in an antenuptial contract. Let the divorce court then decide if such a clause is against good custom. Every case is different and must be dealt with differently.

Having said that however I urge clients who want an antenuptial contract drafted to understand and accept that if they marry and then divorce they will have to part with equity or income if there is a duty on them to maintain an ex-spouse post-divorce.

No matter what clause you have in an antenuptial contract there is never any real or watertight protection against the duty to pay maintenance post-divorce. The fact is that marriage is a financial risk. It is a choice that some people take and that some people choose not to take.

This article was written by Cape Town divorce lawyer, Peter M Baker

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