What Clauses are Prohibited in an Antenuptial Contract?
While South African law allows for significant "freedom of contract," there are strict legal boundaries regarding what you can include in an Antenuptial Contract (ANC). Any provision that is considered contra bonis mores (against good morals), against public policy, or prohibited by statute will be declared null and void.At Louwrens Koen Attorneys, we ensure your ANC is not only tailored to your needs but is also legally enforceable, avoiding clauses that could jeopardize the validity of your entire contract.
Prohibited Clauses: What You Cannot Include
The law prohibits any clause that undermines the essential nature of marriage, individual human rights, or public interest.
1. Infringement on Personal Freedom & Religion
- Forced Religious Conversion: You cannot include a clause where one spouse undertakes to adopt or convert to the religion or faith of the other.
- Restrictions on Employment: A clause stating that a spouse (e.g., the wife) must stop working or become a permanent housewife upon the birth of a child is unenforceable.
2. Undermining the Marriage Relationship
- Living Separately: A clause stating the parties will not live together after marriage is contrary to the legal nature of a consortium omnis vitae (a lifelong partnership).
- Permitting Infidelity: You cannot include a "cheating clause" that permits either party to commit adultery.
- Marital Power: Since the Matrimonial Property Act abolished marital power, you cannot include any clause that attempts to recreate or retain the husband’s dominance over the wife’s person or property.
3. Illegal Financial or Legal Restrictions
- Household Necessaries: You cannot stipulate that one spouse is not responsible for "household necessaries." By law, spouses are jointly and severally liable for these expenses.
- Arbitration for Disputes: Clauses requiring future marital disputes to be referred to arbitration are generally not permitted, as the High Court remains the ultimate guardian of all matters involving marriage and children.
- Waiver of Accrual Forfeiture: You cannot include a clause stating that a spouse loses the right to ask for a "forfeiture of benefits" or an order of share in the accrual upon divorce. This is a statutory right that cannot be signed away in advance.
The "Golden Rule" of ANC Drafting
Parties are free to include almost any provision—such as succession clauses or specific asset exclusions—provided they are not:
- Against Nature or Reason
- Immoral
- Contrary to Public Policy
- Prohibited by Law
If a Notary Public inadvertently includes a prohibited clause, the court will strike out that specific provision, though the rest of the contract may remain valid.
Expert Notarial Oversight in Pretoria
Drafting an ANC requires more than just filling in a template; it requires a deep understanding of the Matrimonial Property Act. Our office at Loftus Versveld ensures your contract is "bulletproof" by excluding any unenforceable terms that could lead to costly litigation later.
For a fixed fee of R1950, we provide professional drafting, notarial execution, and registration at the Pretoria Deeds Office.
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