ConCourt refuses woman leave to appeal divorce settlement

The Constitutional Court has refused an Mpumalanga woman leave to appeal a 2019 judgment in terms of which a postnuptial agreement she and her now ex-husband entered into some 20 years after getting married, was deemed unenforceable.

The two were married out of community of property in 1993.

In 2014, however, they signed an agreement in terms of which the woman’s then husband agreed to give her 50% of his estate if they divorced.

Subsequently, the woman discovered her husband was having an affair and the two decided to divorce.

In the Mbombela Regional Court, she launched a claim in terms of their agreement but the magistrate ultimately found it had not been sanctioned by a court and was invalid.

This finding was, however, overturned by the Mpumalanga High Court which held the agreement was a binding settlement agreement entered into in contemplation of a divorce.

But this finding, too, was overturned, this time by the Supreme Court of Appeal (SCA).

“A court may only make an agreement between parties an order of court if it is competent and proper to do so. First and foremost, the agreement must, either directly or indirectly, relate to a legal issue or lis between the parties. It must bear some relation to litigation,” the SCA said at the time.

“This means that, while it is not necessary for divorce proceedings to have been instituted at the time of the signing of the agreement, a divorce must have been contemplated by the parties at that time.”

The SCA’s ruling prompted the woman to turn to the Constitutional Court in an attempt to have the new contract recognised. She argued the case should be heard because it affected every person in SA who was married out of community of property.

But, in dismissing the application, Justice Nonkosi Mhlantla yesterday labelled the woman’s attacks on the SCA judgment “misplaced”.

“A proper interpretation and analysis of the judgment reveals that the SCA did not prescribe a bar on all agreements between spouses married out of community of property. The finding only relates to this agreement, whose terms appeared to have the effect of changing the parties’ matrimonial regime without being sanctioned by a court order,” Mhlantla said.

She also said the woman had “changed tack” and introduced new issues – of contractual freedom, dignity and unfair discrimination – in the Constitutional Court.

“It has been established that a court will not entertain a novel argument where it causes prejudice or unfairness to the other party,” the judge said.

“It is clear that the applicant seeks to advance a new case on a totally different basis and on issues not advanced in the high court and the SCA. The respondent has not had an opportunity to present his case, in respect of these new issues, in the other courts and will be prejudiced by the applicant’s stance”.

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