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Amendments to Antenuptial Contract

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The limits on the power of South African Courts to amend an antenuptial contract - Ex Parte Venter Et Uxor 1948 (2) 175 (OPD).

In the abovementioned case a husband and wife applied to Court to be able to register a post-nuptial contract. This is a contract entered into after the marriage which has the same effect as a contract entered into before a marriage (antenuptial contract).

The parties had married on the 5th of June 1937 and on the marriage certificate it was stated that they were married “op huweliksvoorwaardes”. The contract was returned by the Registrar of Deeds with an endorsement stating that it was incomplete because a number of an erf which the husband undertook to transfer to the wife had not been filled in. The Registrar of Deeds required the notary in question to rectify the matter and to re-lodge the deed before the 3rd of July 1937. This was never done and now the parties wanted to have that clause which dealt with the erf deleted, as the erf had passed out of the husband’s possession.

The Court in the end was of the view that the power of the Court to authorize the revocation or alteration is strictly limited to those cases where the marriage has been dissolved, or where the terms appearing in the antenuptial contract do not give effect to the true agreement between the parties.

The Court looked at clause 8 of the antenuptial contract. In this clause the husband undertook to pass transfer to the wife of a certain erf. In terms of the amended draft all reference to this erf was omitted and this clearly constituted a gift by the wife to the husband according to the Court. The Judge was satisfied that he had no authority to authorize the proposed or any other departure from the terms appearing in the original agreement.

The Court did however authorize the parties to enter into a contract in terms of which the Registrar of Deeds would be authorized to register it saving the rights of creditors who had become such between the dates of marriage and registration.

In coming to its conclusion the Court looked at various authorities. The Court cited the headnote of Ex parte Smuts (1914, C.P.D. 1304), which reads as follows:

“Though the rule of the Roman-Dutch law is that an antenuptial contract cannot be revoked durante matrimono even by the mutual consent of the husband and wife yet, upon good cause being shown, the parties can obtain an alteration or revocation of such contract through a judgment of the Court.”

The court also looked at the decision of Ex parte De Zwaan and Another (1909, T.S. 676) where Wessels, J stated:

“It is perfectly clear that an antenuptial contract once entered into and registered is final; the parties have no right to revoke either the whole or any portion of that contract.”

The case of Ex parte Venter et Uxor is important as it illustrates how important it is for an antenuptial contract to give effect to the true agreement between the parties. If the antenuptial contract is not properly drafted, this could lead to all sorts of problems after the marriage. It is furthermore very costly to launch an application to the High Court to have an antenuptial contract amended.


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