The appellant and the respondent got married to each other on August 28, 1993, out of community of property with the exclusion of the accrual system. The appellant later on drafted another agreement in the course of their marriage, which was signed by the respondent on November 10, 2014. The new contract purported to set aside certain terms of the ante-nuptial contract by entitling the applicant to half of the respondent’s estate and for him to pay her maintenance. On November 30, 2014, the respondent demanded for a divorce.
Subsequently, the respondent issued summons for divorce in the Regional Court. The appellant filed a counterclaim seeking, among other things, a declaratory order that the post-nuptial agreement was valid and binding, and that it was signed in settlement of all claims or disputes that might emanate from the divorce action.
The Regional Court dismissed the appellant’s counterclaim on the ground that the post-nuptial agreement was not entered into in contemplation of a divorce and that it would be against the law and public policy to allow parties to opt out of their marital regime without the mechanism as provided for in section 21(1) of the Matrimonial Property Act. Consequently, it granted a decree of divorce.
The appellant applied to the High Court, for leave to appeal. The High Court upheld the appeal and overturned the decision of the Regional Court. It held that the agreement was enforceable since it had been concluded in contemplation of a divorce with its purpose being to constitute a settlement agreement. The respondent appealed to the Supreme Court of Appeal contesting the High Court’s decision. The Supreme Court of Appeal noted that since the parties had not approached a court in terms of section 21(1) of the Matrimonial Property Act to sanction the change, the central issue was whether the agreement was made in contemplation of a divorce. It held that the applicant failed to prove that the agreement was concluded in contemplation of a divorce. Therefore, the Supreme Court Appeal upheld the appeal and set aside the order of the High Court. Aggrieved by the decision, the appellant approached the Constitutional Court for leave to appeal.