Regspraak: Regsontdaning kragtens ’n akte van dading, soos ’n huweliksvoorwaardekontrak, beliggaam ’n ooreenkoms gebaseer op wilsooreenstemming en dít word beheers deur die beginsel pacta sunt servanda – mits die afstanddoener dan handelingsbevoeg is

Author: JC Sonnekus

ISSN: 1996-2207
Affiliations: Universiteit van Johannesburg
Source: Tydskrif vir die Suid-Afrikaanse Reg, Issue 4, 2022, p. 809-828


 “At the dissolution of a marriage subject to the accrual system, … the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, … acquires a claim against the other spouse or his estate for an amount equal to half of the difference between the accrual of the respective estates of the spouses” (s 3(1) of the Matrimonial Property Act 88 of 1984 – emphasis added). This indicates that, but for explicit exceptions, before the dissolution of the marriage no patrimonial right regarding accrual sharing vests. The vesting of the patrimonial right follows by operation of law and does not depend on the subjective animus accipiendi of the benefitting spouse. For that reason the act provides that the same applies even where the benefitting spouse’s demise caused the dissolution of the marriage – dead people cannot form an intention to accept to which a court should adhere. In the JAN matter the wife in 2019 desperately wanted a speedy divorce and on numerous occasions explicitly declared that she wanted nothing out of the marriage and accordingly stated in the deed of settlement, after consultation with the applicable divorce attorney who explained that her marriage was governed by accrual sharing, that she would waive her claim to accrual sharing. The matrimonial property regime in the marriage that had broken down irretrievably was governed by a valid ante-nuptial contract that provided for accrual sharing to which the parties agreed after consultation with the notary before their marriage 23 years earlier. Three years after the divorce she approached the court in the current matter for the rescission of the divorce order in so far as it incorporated the deed of settlement in the court order. The court correctly held that no justification existed for such a rescission. Pacta sunt servanda governs not only the ante-nuptial contract but also the deed of settlement, especially since both documents resulted from consensus reached between the spouses after receiving guidance and advice from independent attorneys and notaries. The deed of settlement is also the subject of the order of the high court – leaving little room to claim that the alleged agreement was only the result of an unintended misrepresentation. In a society governed by the rule of law, all legal subjects should adhere to the binding principle that an agreement reached may not lightly be negated just because one of the parties in hindsight is no longer satisfied with the outcome of the agreement he/she misrepresented to the other party to agree to. These agreements cannot be interpreted similar to a tombola ticket at a church fete or some insurance cover where every participant always gets something out. The court correctly held that the “inherent jurisdiction of the High Court does not include the right to tamper with the principle of finality of judgments” (par 22). “There are two basic requirements to be met when a court considers a request to grant a judgment in accordance with the terms of a settlement agreement. The first, relevant for present purposes, is that the court must be satisfied that the parties to the agreement have freely and voluntarily concluded the agreement and that they are ad idem as to its terms. Once a court has made a consent judgment, it is functus officio and the matter becomes res judicata” (par 23). The same requirements apply to the ante-nuptial agreement. It is submitted that the addition by the applicant of her signature to the deed of settlement to which she agreed three months before the divorce order in the presence of the attorney, could not have had the legal effect of an immediate waiver of the patrimonial right because at that stage no patrimonial right to accrual sharing had yet vested in her estate. It would only vest if applicable, that is, if at the dissolution  of the marriage her estate shows the smaller accrual. Had her estate become insolvent after signing the deed of settlement but before the granting of the divorce order, the right to share in the accrual would be an asset in her estate after vesting at the dissolution of the marriage and it would be to the benefit of her creditors notwithstanding the previously signed deed of settlement. It is only during the subsistence of the marriage that the potential right/spes to accrual sharing is not transferable or liable to attachment, and it does not form part of the insolvent estate of a spouse (s 3(2) of Act 88 of 1984). The deed of settlement at most indicated her intention, unless retracted before the court order, to then waive her claim and the intention of her erstwhile husband to accept the benefit that her act of waiver offers him. As such it was conditional that at dissolution of the marriage the entitled party still has the power and intention to legally waive the acquired right. In this case nothing hampered with the condition and the court order finalised the matter. It may be that the resulting benefit for the husband carry some tax consequences since as erstwhile debtor he is acquitted of his debt and released of accrual sharing. This aspect was not considered.