Before the Matrimonial Property Act 88 of 1984 (MPA) was introduced, matrimonial property law in South Africa was governed by the immutability principle. This principle dictated that the property regime chosen by a couple at the time of their marriage could not be altered afterward. The case of Honey v Honey in 1992 (93 SA 609 (W)) reinforced this, stating that under common law, spouses couldn't modify their matrimonial property system through an agreement. Any contract attempting to change the prenuptial agreement was considered void and unenforceable. However, the introduction of the MPA softened this rigid stance by providing ways for couples to change their matrimonial property system after marriage.

Matrimonial Property Act
In terms of section 21(1) of the MPA, a husband and wife, whether married before or after the commencement of this Act may jointly apply to a court for leave to change the matrimonial property system including the matrimonial power, which applied to their marriage. The court has the authority to approve changes to a matrimonial property system if it is convinced that:

(a) there are sound reasons for the proposed change;
(b) sufficient notice of the proposed change has been given to all creditors of the spouses;
(c) no other person will be prejudiced by the proposed change.

Upon meeting these conditions, the court can order that the existing matrimonial property system no longer governs the marriage and can permit the spouses to execute a notarial contract that will define their matrimonial property system going forward, subject to any conditions the court deems appropriate.1

AM v HM 2020 (8) BCLR 903 (CC)2
The abovementioned case concerned the question whether a contract concluded by married persons, which departs from the terms of their antenuptial contract, is valid and enforceable. The applicant (wife) and respondent (husband) were married out of community of property with the exclusion of the accrual system. During their marriage, the applicant (the wife) drafted an agreement intending to revise specific terms of their antenuptial contract. This new agreement proposed that she would receive half of the respondent's (husband's) estate and that he would continue to provide for her maintenance. The husband signed this agreement on 10 November 2014, and following this, the couple continued to live together as husband and wife.

On 30 November 2014 the respondent indicated that he intends to institute divorce proceedings and issued divorce summons against the applicant. The applicant filed her counterclaim where she sought, amongst other things, a declaratory order that the agreement was valid and binding and that it was signed in settlement of all claims or disputes that might emanate from the divorce action. The Regional Court granted the divorce order and dismissed the counterclaim. It held that the agreement was not entered into in contemplation of a divorce and that it would be against the public policy to allow parties to opt out of their marital regime without the mechanism provided for in section 21(1) of MPA.

High Court
The applicant applied to High Court for leave to appeal. The appeal was upheld by the High Court which overturned the decision of the Regional Court. It held that the agreement was enforceable since it had been concluded in contemplation of a divorce with its purpose being to constitute a settlement agreement.

Supreme Court of Appeal
The respondent appealed to the Supreme Court of Appeal. This court noted that since the parties did not approach a court in terms of section 21(1) of the MPA to sanction the change, the central issue was whether the agreement was made in contemplation of a divorce. It held that the applicant failed to prove that the agreement was concluded in contemplation of a divorce. The Supreme Court of Appeal upheld the appeal and set aside the order of the High Court.

Constitutional Court
The applicant approached the Constitutional Court for leave to appeal. In unanimous decision, the Constitutional Court held that while the matter engaged the court’s jurisdiction, it was not in the interest of justice to grant leave to appeal. This was because the applicant introduced several constitutional issues in terms of contractual freedom, dignity, and unfair discrimination. She also had constitutional complaint in interpretation of section 21(1) of MPA. The Court held that these issues had not been ventilated in the other courts and this would in effect render the Constitutional Court a court of first and last instance. Furthermore, it was held that the Supreme Court of Appeal did not prescribe a bar on all agreements between spouses married out of community of property. The finding only related to the agreement at hand. The appeal was dismissed.

Given the previously discussed legal context, it's a well-established principle that spouses cannot modify an antenuptial contract after marriage without first obtaining court approval as outlined in section 21(1) of the Matrimonial Property Act (MPA). However, this restriction doesn't prevent spouses who are married out of community of property from entering into other types of agreements.

Reference list: 
section 21(1) of the Matrimonial Property System 88 OF 1984
J Heaton: South African Family law (3rd ed)
AM vs HM 2020 (8) BCLR 93 (CC)
Honey v Honey 1992 93) SA 609 (W)


WRITTEN BY SINAZO MAU-MAU
Sinazo Mau-Mau is an attorney at Miller Bosman Le Roux


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