Consumer Information

Author: Roy Bregman
Bregman Moodley Attorneys
9 May 2022

Unenforceable clauses in a marriage contract

Spouses are generally free to include any provision in their antenuptial contract (ANC). However, the provision may not be contra bonos mores (against the good morals of the public), against nature, reason, public policy, prohibited by any law or purport to take over the powers of the court. Clauses of this nature will be null and void.

An ANC may not include clauses that are unreasonable, against public policy or unlawful.

Unreasonable clauses include:

  • Prohibiting a spouse from working;
  • Forcing a spouse to live in a particular area;
  • Stating that marital disputes must be referred to arbitration;
  • Obliging a spouse to adopt the religion of the other spouse;
  • Stating that the parties will not live together as man and wife after the marriage; or
  • Stating that neither spouse shall have the right to ask for an order of forfeiture or share in the accrual of the other’s estate, following a divorce.

Against public policy:

  • Clauses enforcing a change of religion, gender or race or prohibiting any association; or
  • A clause permitting the parties to commit adultery.

Unlawful:

  • Clauses allowing or forcing a spouse to commit a crime.

Effect of a clause discouraging infidelity

Can an ANC include a clause to deter a husband/wife from getting involved in an extramarital affair in the future? Case law suggests that one must interpret this type of clause in context. For example, if the parties have been divorced before because of an extramarital affair.

An example of such a clause: ‘Should it be proven that A be the cause of a future divorce through an extramarital relationship, he will (here reflect an obligation on the husband to give the wife a fixed property, pay her a cash amount, etc.)’

The court will enforce this clause as it seeks to preserve the marriage by discouraging another extramarital affair by the husband.

The original article can be viewed here:

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