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Article by listed attorney: Fawzia Khan 

Can you have an agreement not to pay your wife maintenance for herself, if the marriage ends?

Can a couple agree to a term in an Ante Nuptial Contract (”ANC”) where only one of the spouses is denied the right to claim future maintenance against the other? The answer to that is a resounding NO! Our courts will not enforce an agreement which is patently unfair or considered ‘contra bonis mores’, i.e. against public policy. In a divorce case, which came before the Western Cape High Court recently, the husband, who incidentally was a Senior Advocate, was embroiled in divorce proceedings against his wife.

The court was asked to pronounce on the validity of an ANC, signed by the parties, which stated that when the marriage ended, the wife would not be entitled to receive any future maintenance for herself. In lieu of not paying her maintenance, the husband said he would donate immovable property to her. That donation did not take place. When the wife claimed maintenance, the husband refused to pay it to her based on agreement they had in the ANC. The court said that any conduct which seeks to deprives a party of a legal right or remedy is per se against public policy. It also said that the agreement was against our Constitution, which seeks to promote equality and human dignity. The husband came under scathing attack by the judge who also accused him of embarking on a “scorched earth policy” towards his wife, who said he “drummed up” litigation costs hoping his wife would be unable to fund the divorce and be forced to accede to his demands.

The court found that the parties were not on an equal footing when they signed the ANC and set aside that term in the ANC on the basis that it was unfair, against public policy and therefore unenforceable.

See also. Can a Divorced spouse still claim maintenance if earning an income?

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