When getting married a common option for couples is to select getting married out of community of property with the accrual system. This requires an antenuptial contract to be drawn up by a notary. But what happens if one of the spouses wishes to also in the antenuptial contract exclude the right to claim maintenance should they get divorced. Is that at all enforceable?

Section 7(2) of the Divorce Act 70 of 1979 is the point of departure in any question of spousal maintenance in divorce actions. This section sets forth the factors upon which a court will rely when considering a claim for spousal maintenance, the amount payable and the duration for which an order will apply in favour of a party. This requires, although not a closed list, an evaluation of the current and prospective needs of each individual partner, the status quo and standard of living of the parties and their contribution towards the breakdown of the marriage relationship.

Spousal maintenance is therefore not an automatic right for any party in divorce proceedings, with the spouse who can make out a proper case for spousal maintenance in line with the factors in section 7(2) able to be awarded the right to claim for maintenance. 

Can this right to claim maintenance at divorce be waived by an agreement between the spouses?
Antenuptial contracts are recognised in South African matrimonial property law as a means to designate the applicable matrimonial property consequences that will attach to a marriage. Parties may in essence agree to include any provision in an antenuptial contract except that which may be regarded as unreasonable, against public policy and unlawful. An agreement in the form of an antenuptial contract is an important facet of the freedom to contract, a legal principle which has been strongly recognised and upheld in our law. 

However, a provision to waive spousal maintenance will be regarded as against public policy for the simple reason that it deprives a court of the statutory powers to make such a finding based on the facts of each matter. The presence of an antenuptial contract that attempts to waive the powers of the court will not override the right of a party to claim for spousal maintenance based on circumstances he or she could not have foreseen at date of divorce and the provisions that aim to override such powers will be unenforceable.


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