The Marriage and the Disputed Antenuptial Contract – A 90-Year-Old Groom and His 60-Year-Old Bride
In a remarkable case that recently came before the Western Cape High Court, a marriage between a 90-year-old man and his 60-year-old bride unravelled over disputes about their antenuptial contract. The bride, who had known her husband since childhood through his friendship with her late father, found herself embroiled in a legal battle that would expose the complexities of matrimonial property regimes in South Africa.
The couple’s romantic relationship began in 2017, culminating in their marriage on 7 October 2023. However, the circumstances surrounding the signing of their antenuptial contract would later become the subject of intense legal scrutiny. The applicant claimed she had never discussed or agreed to any marital property regime with her husband before their wedding, maintaining that she had intended to marry in community of property.
In what would become a pivotal moment, the bride alleged that just three days before their wedding, she was asked to sign what was described as an “insignificant” document. This document would later prove to be an antenuptial contract, fundamentally altering the financial implications of their marriage. The court, citing Langeveld v Union Finance Holdings (Pty) Ltd 2007 (4) SA 572 (WLD), emphasised that there exists a strong presumption that anyone who signs a document intends to enter into the transaction contained within it.
The case took on additional complexity due to the long-standing relationships between all parties involved. The attorney who drafted the antenuptial contract wasn’t merely a legal professional – he was their mutual friend of many years and even served as the master of ceremonies at their wedding. This personal connection added layers of trust and expectation to what would typically be a straightforward legal arrangement.
The matter became particularly intense when it emerged during court proceedings that divorce proceedings had been instituted in the week before the argument. Despite the serious allegations and mounting legal tensions, the bride maintained that she did not believe their marriage had broken down irretrievably – a testament to the emotional complexities that often underpin such legal disputes.
This opening chapter of their legal saga would set the stage for a broader examination of how South African courts handle disputed antenuptial contracts and the challenges of resolving such intimate disputes through the legal system.
The Coffee Shop Eavesdrop That Started It All
In an extraordinary turn of events that catalysed this High Court application, the applicant’s discovery of her marital property regime came about through a chance encounter at a coffee shop in May 2024. While overhearing strangers discussing antenuptial contracts and their pre-wedding signing requirements, the applicant’s suspicions were aroused about the document she had allegedly signed in the second respondent’s office on 4 October 2023.
Rather than confronting her husband or the second respondent directly, despite their long-standing relationships, the applicant opted for a formal approach. She contacted the second respondent’s office requesting a copy of the document she had signed. Upon receiving it on 3 May 2024, she discovered it was an antenuptial contract excluding community of property without the accrual system.
The subsequent legal correspondence revealed conflicting accounts. The third respondent, who was the notary responsible for the contract, provided detailed emails explaining that she had personally attended to the signing at the first respondent’s residence with two witnesses present. However, the applicant maintained she had only signed a document in the second respondent’s office without understanding its contents.
Adding weight to the documentary trail, evidence emerged of the applicant’s acknowledgment of the antenuptial contract as a “wedding present” in both email and WhatsApp communications. The court noted that on 17 April 2024, the applicant had signed a Will explicitly recording her marriage as out of community of property. These documented interactions would later prove significant in the court’s assessment of the matter.
The case demonstrates the court’s systematic approach to evidence evaluation, as outlined in Plascon-Evans Paints Limited v Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), particularly when faced with contradictory versions in motion proceedings. The judgment emphasises the importance of contemporaneous documentation and subsequent conduct in establishing the true nature of disputed legal arrangements.
The Role of the Attorney and Notary – A Wedding MC Caught in the Middle
The professional obligations of attorneys and notaries in South Africa came under sharp focus in this matter, particularly given the dual role of the second respondent as both legal practitioner and master of ceremonies at the wedding. The court grappled with the implications of these overlapping personal and professional relationships, especially considering the serious allegations of fraud and deceitful dealings levelled against officers of the court.
The third respondent, as the notary, followed standard practice by providing detailed explanations of the matrimonial property systems available in South Africa. According to her explanatory affidavit, she had specifically explained the consequences of an out of community of property marriage without accrual. Her professional approach included refusing to sign antenuptial contracts under Power of Attorney, preferring direct client engagement to ensure understanding.
The second respondent’s position was particularly nuanced – having maintained a decade-long attorney-client relationship with the applicant while simultaneously being a trusted friend to both parties. The court noted the significance of his gesture in waiving the firm’s fees for drafting the antenuptial contract as a wedding gift, a fact later acknowledged by the applicant in documented communications.
As cited in Gounder v Top Spec Investments (Pty) Ltd 2008 (5) SA 151 (SCA), the Supreme Court of Appeal’s approach to disputed signatures on legal documents provided crucial guidance. However, this case distinguished itself through the complex web of professional and personal relationships that surrounded the execution of the antenuptial contract.
The explanatory affidavits filed by both the attorney and notary became integral to the proceedings, despite their notice to abide. The court recognised that allegations of professional misconduct necessitated their response, leading to a costs order that included the preparation of these affidavits under Uniform Rule 70(3). Their detailed accounts of the events surrounding the contract’s execution exemplified the importance of maintaining clear professional boundaries and comprehensive record-keeping, even in matters involving close personal relationships.
Why Motion Proceedings Were the Wrong Choice
The Western Cape High Court’s judgment delivered a masterclass in civil procedure, particularly emphasising the limitations of motion proceedings when dealing with disputed antenuptial contracts. Drawing from Standard Bank of SA Limited v Neugarten and others 1987 (3) SA 695 (BLBR), the court highlighted that when referring matters for oral evidence, orders should precisely specify which issues require determination and identify potential witnesses.
The Supreme Court of Appeal’s position in Pahad Shipping CC v Commissioner for the South African Revenue Services [2020] 2 ALL SA 246 (SCA) proved instrumental, establishing that applications for referral to oral evidence should typically be made at the outset, not after merit arguments. This principle aims to prevent unnecessary costs and delays, though the court acknowledged this rule isn’t inflexible.
The judgment criticized the applicant’s approach of leaving the decision to refer the matter for oral evidence entirely in the court’s hands. As emphasised in Hansa Silver (Pty) Ltd v Obifon (Pty) Ltd t/a The High Street Auction Co 2015 (4) SA 17 (SCA), the court’s discretion to allow oral evidence largely depends on whether such testimony might tip the balance in the applicant’s favour. The more the probabilities favor the respondent, the less likely the court will exercise its discretion in the applicant’s favour.
A critical distinction was drawn between this case and matters typically brought by motion, such as review applications under Rule 53. The court emphasised that relief based on allegations of misrepresentation or fraud traditionally belongs in action proceedings. The extensive 399-page record, filled with claims and counterclaims, exemplified why the motion procedure was inappropriate for resolving such deeply contested factual disputes.
The court’s reluctance to refer the matter for oral evidence stemmed from the absence of clearly defined disputes and the recognition that testimony would be required on multiple aspects beyond just the contract’s execution. With divorce proceedings already initiated, the court determined that these disputes would be better articulated and ventilated after proper exchange of pleadings and discovery in trial proceedings.
What This Case Teaches Us About Signing Legal Documents
The Western Cape High Court’s decision provides crucial insights into the legal implications of signing documents, particularly in the context of matrimonial property regimes. The judgment reinforces the longstanding principle of caveat subscriptor – the duty of a signatory to be vigilant about what they sign, regardless of their relationship with the other parties involved.
Through its analysis of South African Veterinary Council and another v Szymanski 2003 (4) SA 42 (SCA), the court emphasised that the onus rests squarely on the person who signed a document to prove they did not intend to enter into the transaction it contains. This becomes particularly relevant in cases where the signatory is, as noted in the Langeveld case, not a “babe-in-the-woods” but rather an accomplished individual capable of understanding legal documents.
The judgment serves as a harsh reminder of the intersection between personal trust and legal formality. Despite the applicant’s claimed complete trust in her attorney, the court maintained that this trust did not override her responsibility to read and understand documents before signing them. The court’s approach suggests that professional relationships, even those spanning decades, do not diminish the fundamental legal principle that a signature carries binding force.
The recent judgment in Mamadi v Premier, Limpopo and others 2024 (1) SA 1 (CC) was referenced to distinguish between matters appropriately brought by motion and those requiring trial action. This distinction becomes particularly pertinent when dealing with documents that fundamentally affect personal rights and obligations, such as antenuptial contracts.
The case ultimately stands as a cautionary tale for legal practitioners and clients alike about the importance of clear communication and proper documentation in matrimonial property matters. It reinforces that the execution of an antenuptial contract requires more than just signatures – it demands proper explanation, understanding, and adherence to formal requirements, regardless of the personal relationships between the parties involved.
Questions and Answers
Why did the court dismiss the application instead of referring it to oral evidence? The court found that the disputes were too extensive to be resolved through oral evidence alone, and the applicant failed to properly apply for referral at the outset of proceedings. The court noted that the probability scales favoured the respondents, making it inappropriate to exercise discretion for referral.
What is the significance of the Plascon-Evans rule in this case? The rule establishes that in motion proceedings, a final order can only be granted if the facts averred in the applicant’s affidavits, which have been admitted by respondents, together with the facts alleged by the latter, justify such an order.
How does the caveat subscriptor principle apply in this matter? The principle places the burden on the signatory to be careful when signing documents. The court emphasised that there is a strong presumption that anyone who signs a document intended to enter into the transaction contained within it.
What are the requirements for referring a matter to oral evidence under Rule 6(5)(g)? The order must specify which issues will be determined by oral evidence and define who may or must be called as witnesses. It should not be formulated as if it were a trial order.
Why was the applicant ordered to pay the costs of the second and third respondents’ explanatory affidavits? Despite filing notices to abide, the second and third respondents had to respond to allegations of professional misconduct. The court found these affidavits formed an integral part of the proceedings and were reasonably necessary under Rule 70(3).
What is the significance of the timing of an application for referral to oral evidence? Following Pahad Shipping CC, applications for referral should be made at the outset, not after argument on merits, to avoid unnecessary costs and delays.
How did the court view the use of motion proceedings for allegations of fraud and misrepresentation? The court emphasised that such relief is usually sought through action proceedings and trial, not motion proceedings, due to the likelihood of factual disputes.
What impact did the pending divorce proceedings have on the court’s decision? While the divorce proceedings influenced the court’s decision not to grant a punitive cost order, they reinforced the view that the disputes would be better ventilated in trial proceedings.
How did the court treat the confirmatory affidavits from the witnesses? The court found them insufficient as they merely confirmed the applicant’s version by reference without providing substantiated allegations.
What was the relevance of the WhatsApp messages and emails in this case? They provided documentary evidence of the applicant’s acknowledgment of the antenuptial contract as a wedding gift and demonstrated her awareness of being married out of community of property.
How did the court view the dual role of the second respondent as both attorney and wedding MC? The court recognised the complexity of overlapping personal and professional relationships but emphasised that this did not diminish the legal principles governing the execution of documents.
What is the significance of the third respondent’s practice regarding Powers of Attorney? Her refusal to sign antenuptial contracts under Power of Attorney demonstrated professional diligence in ensuring clients understand what they are signing.
How did the court apply the Gounder case to this matter? While Gounder allowed for accepting one party’s version in motion proceedings involving disputed signatures, this case was distinguished by its complex web of relationships and multiple disputed facts.
What was the court’s view on the applicant’s burden of proof? The court rejected the submission that the onus rested on the first respondent to prove the validity of the antenuptial contract, affirming that the burden lay with the applicant to prove she did not intend to enter into it.
What role did the Will signed by the applicant play in the court’s decision? The Will, which explicitly recorded her marriage as out of community of property, served as evidence of her subsequent conduct acknowledging the marital property regime.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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