A Pretoria couple who signed a prenup a few months before their divorce to avoid division of estate found out during divorce proceedings that their prenup was null and void.
The pair got married in February 2015 at Hammanskraal by virtue of customary law, and they had one child during their marriage.
In January 2020, five years after their marriage, the couple signed an antenuptial contract with the exclusion of the accrual.
The contract means that assets acquired before or during the marriage remain separate throughout the course of the marriage.
Months after signing the contract, the wife filed a divorce application at the North Gauteng High Court in Pretoria.
Despite signing the prenup, she still requested a division of the joint estate.
The husband filed a counterclaim seeking an order that the division of the joint estate be subject to an adjustment in his favour.
In support of the adjustment relief, the husband said that before initiating divorce proceedings, the wife diminished her estate.
He alleged that she unlawfully disposed of immovable property that she owned before marriage, and she also relinquished her interest as a shareholder in an entity called Dreamteam in favour of her mother and failed to notify him.
She also could not account for the inheritance she received from the estate of her late spouse from her first marriage.
From her first marriage, she inherited over R543,000 and four vehicles.
In response, she argued that her current husband benefited from her late husband’s estate and enjoyed using the vehicles as and when he needed them.
Regarding Dreamteam, she said the company "died" because it was not performing.
During cross-examination, the husband conceded that they lived a lavish lifestyle and agreed that his wife had paid for their holiday in Mozambique.
When considering all the facts, judge Linda Retief said the prenup was not signed prior to the conclusion of the marriage and could not be envisaged in terms of Section 7(2) of the Recognition of Customary Marriages Act.
Judge Retief said that applying the law and having regard to the pleadings, the inescapable patrimonial consequences of a marriage in a community of property must flow, which includes the division of the joint estate upon a decree of divorce.
Retief added that the husband has failed to establish grounds upon which the court can exercise discretion in his favour.
The husband was ordered to pay R1,000 for child maintenance every month.
He also has to continue to make payments in respect of the child’s school fees and to retain the child as a dependant on his medical aid scheme.
He also has to share half of his pension fund with his soon-to-be ex-wife from his place of employment, Sibanye Stillwater Mine.
He was also ordered to pay the costs of the application.
IOL