Unenforceable Clauses in a Marriage Contract

According to Louwrens Koen Attorneys, clauses in a marriage contract (ANC) may be deemed unenforceable if they are against public policy, against the good morals of the public, unreasonable, prohibited by law, or aim to take over the powers of the court. These clauses will be null and void.

Examples of unreasonable clauses in a marriage contract include:

• Prohibiting a spouse from working
• Forcing a spouse to live in a specific area
• Requiring marital disputes to be resolved through arbitration
• Obligating a spouse to adopt the religion of the other spouse
• Stating that the spouses will not live together after the marriage
• Preventing either spouse from seeking a forfeiture or share in the other's estate after a divorce.

Clauses against public policy include:

• Enforcing a change in religion, gender, or race
• Prohibiting association
• Allowing or forcing a spouse to commit a crime.

Clause to deter infidelity: A clause in an ANC that aims to prevent infidelity by a spouse is enforceable if it seeks to preserve the marriage by discouraging extramarital affairs. For example, if a clause states that the husband will pay the wife a fixed property or cash amount if it is proven that he caused a future divorce through an extramarital affair, the court may enforce this clause.