THE ENFORCEABILITY OF A LIFELONG MAINTENANCE CLAUSE IN AN EXTERNAL AGREEMENT

The enforceability of a lifelong maintenance clause in an external agreement.

Antenuptial contracts (ANC’S) contain multiple clauses which govern marriages that are out of community of property and their respective assets . These clauses are usually very flexible in terms of what may and may not be included.

Unenforceable clauses include those which are unreasonable, against public policy or unlawful. Some examples include clauses which; prevent a spouse from working, prevent spouses from living together as husband and wife after the marriage, force a spouse to reside in a specific area, allow the other spouse to commit adultery and obliging a spouse to adopt the other spouse’s religion.

In CSB v DHB (Case no 820/2021) [2022] ZASCA 123 (22 September 2022), a question of enforceability was raised regarding a maintenance clause with a lifelong duration. The parties to the matter, the wife as the applicant and the husband as the respondent, concluded a valid ANC declaring their marriage to be out of community of property in January of 2015. Shortly after the parties signed a further agreement which dealt with immovable property, medical aid, vehicles and maintenance. The maintenance clause read “…pay the amount of R20 000 (twenty thousand rand) to the mentioned…as lifelong maintenance” which is due and payable to the wife. The respondent argued that this clause in the agreement varied the antenuptial contract without authority and that such clause was unenforceable.

This matter was first heard in the Regional Court where judgement was granted in favour of the applicant ordering that the maintenance clause was enforceable. The respondent, dissatisfied with the outcome appealed to the Gauteng Division of the High Court, Pretoria where the court upheld the appeal and ordered that the clause was not enforceable. Further, the applicant took the matter to the Supreme Court of Appeal where the order was reversed again in favour of the applicant.

The court reasoned that the agreement runs alongside the ANC and does not seek to alter it but instead add to it. An ANC is tasked with the purpose of governing the matrimonial property of a marriage and its patrimonial consequences and in this light is not regarded as a contract. The agreement further signed does not impact the ANC at all and the separate estates of the parties remain separate. Thus, the ANC will retain its integrity and on divorce the wife will be able to enforce the terms of the agreement.

The court also considered the intentions of the parties when drafting the agreement through analysis of the preamble which reflected no intention to vary the ANC. The preamble was drafted specifically and carefully and thus was deemed to have been done with full consideration given to the ANC. The court then relied on the reasoning in Odgers v De Gersiny 2007 (2) SA 305 (SCA) where it was determined that the agreement however is purely contractual and is to be governed by that sphere of law. In Odgers the court stated that a party’s freedom to contract is respected and allows the parties to determine their own time periods in respect of valid maintenance clauses and in this matter specifically, the maintenance duration is not limited since the parties have agreed to it. This means that the “lifelong” portion and duration of the clause was not prohibited.

Finally, the court stated that the agreement does not fall within the ambit of the Divorce Act under section 7(2) which deals with court discretion to make an order in respect of maintenance where no other order exists. This results in the inability of the court to grant an order of maintenance since the issue of the matter does not originate from the ANC but rather the external agreement. Section 7(2) would only apply when a claim is made under this specific section in relation to an ANC.

The crux of the matter is that the appellant does not claim maintenance under section 7(2) but rather simply seeks the enforcement of the agreement which is contractual in nature. Prior case law has determined that lifelong maintenance clauses are not unusual nor prohibited and thus the court upheld the appeal and ordered that the agreement is enforceable.

To conclude, a lifelong maintenance clause is a normal and permissible clause to which parties will mutually agree to and thus will be enforceable and binding on one another.

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