Divorce Attorney Cape Town

Hacking your spouse’s cell phone is a criminal offence


An article appeared in the Sunday Times recently of a divorce matter where I appear on behalf of a wife. Her millionaire husband, is at the centre of a criminal investigation over the alleged illegal interception of his estranged wife’s private e-mails, SMSes and BlackBerry messages, or BBMs.

The hacking was first suspected when Dr Graham Hefer – a former Natal rugby player – filed divorce proceedings against his wife Denise.

Court documents in that case seemed to show that Hefer had access to more than 50 BBMs, over a dozen SMSes and at least five e-mails between Denise and others this year.

The case has revealed that the BBM facility, one of the preferred “secure” methods of communication can be hacked with relative ease.

Hefer, 48, the managing director of a Nigeria-based British company, is accused of installing spyware software on 49-year-old Denise’s BlackBerry. This type of spyware is readily available.

This is said to haveallowed real-time monitoring of her communication and her whereabouts, and for eavesdropping on her private conversations. These included discussions with her lawyer.

Police confirmed that the matter was under investigation by the Cape Town Central Police Station. Interception and monitoring of telephone communication is prohibited under the Regulation of Interception of Communications Act, known as Rica.

On Wednesday Denise filed a criminal complaint in which she claimed that Hefer had allegedly violated section 2 of Rica, which carries the possibility a fine of up to R2-million or up to 10 years in prison.

In an affidavit, she said she first became suspicious when her husband beat her to filing for divorce in May.

She said she had confidentially instructed her lawyer to issue summons to begin divorce proceedings.

She was shocked when Hefer ‘s attorney, without having been informed who her legal representative was, issued summons at her lawyer’s office.

”What I could not understand was how the accused and his attorney’s knew who my attorney of record was,” read her affidavit.

She claims her husband mentioned details of confidential discussions she had had with her lawyer, which led her to believe her phone had been hacked.

Her lawyer, Bertus Preller of Abrahams & Gross, said the allegations were serious. “There was a grave injustice towards the party involved in that it infringed attorney/client confidentiality,” Preller said.

Denise claims an investigation by her legal team revealed that a type of cellphone spyware, which can be purchased on the internet for R2 792, had been installed on her handset.

The software sends alerts to the e-mail address of the installer, who then has access to the telephone calls or messages on the phone being monitored.

Hefer’s lawyer, Selwyn Shapiro, who said he had advised his client not to comment, said the allegations were unfounded.

”We will deal with it at an appropriate time in the right forum,” said Shapiro.

Kathleen Rice, head of technology, media and telecommunications at law firm Cliffe Dekker Hofmeyr in Johannesburg, said Rica allowed for the interception of communication – but only in police investigations, ”and that can only be done with a court warrant. BBM messages are indirect communication but, if it’s being intercepted and monitored, that makes it a criminal offence .”

MONICA LAGANPARSAD | 27 November, 2011 – http://www.timeslive.co.za/local/2011/11/27/man-probed-for-spying-on-wife

Maintenance in a divorce – it is a discretion not a right


The recent case of AV v CV 2011 (6) SA 189 (KZP) is of interest in respect of whether a spouse was entitled to maintenance as of right. The court was of the opinion that awarding spousal maintenance was in the discretion of a court and not a right per se.

This was a matter where the granting of life long maintenance by the court was taken on appeal.  The trial court made an order in the following terms:

  1. ‘That the bonds of marriage subsisting between the plaintiff (present respondent) and the defendant (present appellant) be and are hereby dissolved.
  2. That the defendant be directed to pay maintenance to the plaintiff until her death or remarriage at the rate of R12 000 per month.
  3. That the defendant be directed to retain the plaintiff as a beneficiary on his current hospital plan or any equivalent replacement thereof and to pay the premiums in respect thereof timeously and in full.
  4.  That the defendant be directed to pay all amounts due in respect of the VW Polo 1.9 motor vehicle timeously and in full until the purchase price and all interest thereof has been paid in full.
  5. That the defendant be directed to pay the plaintiff’s costs of suit.’

The appellant appealed against that part of the order contained in par 2, 3, 4 and 5.

 The Facts

The parties were married to each other at Durban on 18 December 1993 in terms of an antenuptial contract, whereby the accrual system was excluded. No children were born of the marriage. This was a second marriage for both parties. The appellant had two children from his previous marriage and the respondent four children. Both parties’ children lived with the couple during the marriage.

During 1995 the marriage relationship became strained largely because of financial difficulties. This led to the parties’ separation in 1997/1998. The respondent left the appellant because she was very unhappy in the marriage. The parties reconciled after a year of separation. The respondent claimed that the parties had always battled financially until she started a new job. In May 2007 the parties were finally separated.

The Law

The court a quo exercised its discretion afforded to it in terms of s 7(2) of the Divorce Act 70 of 1979 (the Divorce Act) and made its findings and delivered its award. Therefore, a court of appeal could only interfere when the court a quo in exercising its discretion misdirected itself or its discretion was not exercised judicially.

On behalf of the appellant it was argued that the court a quo misdirected itself in granting the respondent a permanent maintenance award.

At common law a spouse has no right to maintenance upon divorce. Section 7(2) of the Divorce Act confers discretion upon a court to make a maintenance order which it finds just, having regard to the following factors:

(a)   The existing or prospective means of each of the parties;

(b)   the respective earning capacities of the parties;

(c)   the financial needs and obligations of the parties;

(d)   the age of each of the parties;

(e)   the duration of the marriage;

(f)   the standard of living of the parties prior to the divorce;

(g)   the conduct of the parties insofar as it may be relevant to the breakdown of the marriage;

(h)   any redistribution order made in terms of s 7(3) of the Divorce Act; and

(i)   any other factor which in the opinion of the court should be taken into account.

The authors Hahlo & Sinclair in their book The Reform of the South African Law of Divorce (1980) stated the following at 33:

‘(T)he idea that marriage ought to provide a woman with a ”bread – ticket” for life is on its way out.’ This passage was quoted with approval in Grasso v Grasso where the court stated further at 57H – I:

‘Middle-aged women who have for years devoted themselves full-time to the management and care of the children of the marriage, are awarded rehabilitative maintenance for a period sufficient to enable to be trained or re-trained for a job or profession. Permanent maintenance is reserved for the elderly wife who has been married to her husband for a long time and is too old to earn her own living and unlikely to re-marry.’

The court found in this case that the respondent was not entitled to maintenance as of right, but must persuade the court to exercise its discretion in her favour. In doing so, she has to provide a factual basis for a maintenance award to be made before the quantum and duration thereof are determined by the court.

In Grasso supra the court, having regard to the duration of the marriage, ie 15 years, and the fact that the plaintiff had not worked for most of the marriage and was not working at the time of the divorce, awarded maintenance to the plaintiff. The court also took into account the conduct of the defendant (husband), which was regarded as ‘gross misconduct’ and which ‘must inevitably play no small part in deciding whether or not he should be ordered to pay maintenance to the plaintiff.

In Rousalis v Rousalis, the court stated at 450G – H:

‘A wife of long standing who has assisted her husband materially in building up his separate estate would in my view in justice be entitled to far more by way of maintenance, in terms of this section, than one who did no more for a few years than share his bed and keep his house.’

In Kroon v Kroon, the court found that, having regard to the duration of the marriage, ie 20 years, during which the plaintiff (wife) did not work in the open market but fulfilled the role of housewife and mother, she should be awarded maintenance. However, the court stated at 632F – G that:

‘(T)he Courts do not today distribute maintenance with any degree of  liberality to women who can and ought to work after divorce.’

In the matter of Robert v Robert (DCLD case No 933/2002, 10 March 2003), an unreported judgment, Gyanda J declined to award maintenance to a spouse who was unemployed at the time of divorce on the basis that the marriage lasted only five years, although the plaintiff was no longer a young person to be readily employed. It was a second marriage, and the period during which she enjoyed maintenance in terms of rule 43 had been sufficient to constitute rehabilitative maintenance.

In McCarthy v McCarthy (CPD case No 5570/2003, 15 December 2004), an unreported judgment, the issue in dispute was not whether the wife was entitled to maintenance or not, but the amount and period of such maintenance. The parties were married for 25 years and two children were born into the marriage. The wife had not been employed since 1981. She, however, obtained a BA degree after ceasing employment. The court found that there was no fault to be attributed to either of them in causing the marriage relationship to disintegrate. The court ordered rehabilitative maintenance.

In the case related to this article the parties were married to each other for 15½ years. No children were born of the marriage. It was the second marriage for both the appellant and the respondent. The appellant had two children and the respondent had four, all from previous relationships. At the date of divorce the respondent was 54 years old and was employed earning a monthly net salary of R7980. Her highest level of qualification is Grade 10. She had completed an informal typing course. She was also computer-literate.

The conduct of the parties is undoubtedly a relevant factor to be considered in determining a claim for maintenance in terms of s 7(2) of the Divorce Act. The marriage was of some duration. The reasons given by the respondent for the breakdown of the relationship are trivial. The Langebaan incident and the issues that the appellant had with her children cannot be regarded as ‘gross misconduct’ on the part of the appellant. The difficulties which the appellant and the respondent experienced in accommodating children born of marriages with other parties, within their marriage, coupled with the fact that the parties battled financially, may have placed a strain on their marriage.

The court in Beaumont, referred to the clean-break principle at 993B – F and stated:

‘(O)ur Courts will always bear in mind the possibility of using their powers under the new dispensation in such a way as to achieve a complete termination of the financial dependence of the one party on the other, if the circumstances permit. The last-mentioned qualification is, of course, very important; I shall return to it in a moment. The advantages of achieving a clean break between the parties are obvious; I do not think they need be elaborated upon. The manner of achieving such a result is, of course, by making only a redistribution order in terms of ss (3) and no maintenance order in terms of ss (2). What I have said earlier with regard to the Court taking an overall view, from the outset, of the possibility of making an order or orders under either ss (2) or ss (3) or both, does not mean that the Court will not consider specifically the desirability in any case of making only a redistribution order and awarding no maintenance, having regard particularly to the feasibility of following such a course. With regard to the latter and to the qualification I stressed a moment ago (if the circumstances permit), there will no doubt be many cases in which the constraints imposed by the facts (the financial position of the parties, their respective means, obligations and needs, and other relevant factors) will not allow justice to be done between the parties by effecting a final termination of the financial dependence of the one on the other. In the end everything will depend on the facts and the Court’s assessment of what would be just.’

In the case related to this article the respondent was 54 years old and the appellant is 53 years old. They have been married for 15 ½ years. The respondent was still employed and was computer-literate. In the court’s view the parties had to be allowed to get on with their lives and the appellant had to be relieved of his obligation to maintain two households. This was not a case where the appellant is able to afford and therefore he must maintain. The parties had come to a point in their lives that there should eventually be a ‘clean break’ between them.

Regarding the uncertainty as to what the future holds and the respondent’s prospects of continuing in her employment after reaching 60 years, the court in Beaumont supra stated at 995G – I:

‘Both parties will inevitably suffer hardship because of the parting of their ways. In relation to the areas of uncertainty it is impossible to assess accurately the relative degrees of hardship which each of the parties will suffer, depending upon what assumptions are to be made. Where choices are to be made and decisions to be taken in the dark, as it were, and where the areas of uncertainty are not due to any remissness on the part of the respondent to place available information before the Court, it would be fair, because of the appellant’s misconduct, to allow the scales of justice to be tipped in favour of the respondent and against the appellant, rather than the reverse.’

Section 7(2) of the Divorce Act states that in exercising its discretion, the court has to take any other factor into consideration in making a maintenance order. This includes the misconduct of the parties.

The assets of the respondent amounted to R301 331 as compared to the appellant’s assets of R155 356. The respondent conceded that her assets were more that the applicant’s. The court was of the view that if the respondent can cut her cloth according to her size, she was able to maintain herself on her assets and means.

In awarding maintenance to the respondent, the court a quo compared the present case to Rowe v Rowe (DCLD case No 6166/01), an unreported decision, where the wife, 58 years old, had no formal qualifications and was employed as a receptionist. She had not worked during the duration of the marriage. She was awarded open-ended maintenance. The court in the matter related to this article found the two cases to be distinguishable. Unlike in Rowe the respondent was computer-literate and was employed. In relation to the uncertainty of whether she was be able to continue in her employment after reaching 60 years, ‘it was impossible to assess accurately the relative degrees of hardship which each of the parties would suffer’. To find that she cannot be rehabilitated to become self-supporting was in the court’s view, a misdirection.

The court dismissed the wife’s claim to maintenance.

Is a husband obliged to pay maintenance when his wife lives with another man?


 

A recent judgment concerned the issue whether a husband is obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce. The plaintiff issued summons against the defendant, her husband, during 2003, for a decree of divorce, maintenance for herself and their son and ancillary relief.

The parties had not lived together as man and wife for a continuous period of at least two years prior to the date of the institution of the divorce action. In terms of the provision of s 4(2)(a) of the Divorce Act 70 of 1979 (the Divorce Act), this is proof of the irretrievable break-down of the marriage. The remaining issues were whether the plaintiff is entitled to maintenance, and if so, what such maintenance should be. The defendant’s case in respect of the plaintiff’s entitlement to maintenance was that it is against public policy that a woman should be supported by two men.

The maintenance post-divorce Section 7(1) and (2) of the Act sets out when a court may order the payment of maintenance and the factors that should be taken into account when making such determination.

It provides as follows:

‘7(1) A Court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.

(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the Court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct insofar as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’

Through a long line of cases dealing exclusively with maintenance pendente lite, it has become customary not to award maintenance to a spouse who is living in a permanent relationship with another.

In Drummond v Drummond the Appellate Division agreed with the definition of the phrase ‘living as husband and wife’ as stated by the full bench. The parties agreed that the husband would pay maintenance towards the wife and that maintenance would ‘cease should the plaintiff prove that the defendant was living as man and wife with a third person on a permanent basis’. The said phrase has the following meaning: ‘. . . the main components of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof, secondly, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship.’ The plaintiff and S clearly live together as husband and wife according to the said definition.

In Cohen v Cohen the parties determined in a deed of settlement that the maintenance payable by the plaintiff (the husband) would cease if the defendant lived with another man as husband and wife for a certain specified period. This order was varied by a maintenance court in respect of the amounts the husband had to pay towards maintenance. In the maintenance court’s order the condition in respect of the cohabitation was left out. In a subsequent action it was decided that, where the magistrate had left out the said clause, the condition was no longer enforceable as it had been substituted by the maintenance court.

In Carstens v Carstens the wife claimed maintenance pendente lite in a rule 43 application while she lived with another man as husband and wife. Mullins J found: ‘It is in my view against public policy that a woman should be entitled to claim maintenance pendente lite from her husband when she is flagrantly and deliberately living as man and wife with another man. Not only is applicant in the present case living in adultery, but she and her lover are maintaining a joint household complete with the addition of an adulterine child. She has by her conduct accepted the support of Clarkson in lieu of that of her husband. The fact that Clarkson is unable to support her to the extent that she may have been accustomed in her matrimonial home with respondent does not appear to me to affect the position.’

In SP v HP (another rule 43 application) it was found, on the strength of Carstens, that ‘(t)he objection is not so much about the moral turpitude attaching to the illicit cohabitation, but more about the notion of a woman being supported by two men at the same time’.

In the unreported judgment of Qonqo v Qonqo dealing with a rule 43 application for maintenance pendente lite, the court, in spite of the fact that the applicant cohabited with her lover, ordered the respondent to pay maintenance pendente lite. The reason for ordering the payment of maintenance was that there was no proof that the lover supported the applicant in that instance.

It is also clear from the wording of s 7(2) of the Divorce Act that the legislature did not determine that maintenance should cease when the person receiving the maintenance is in a relationship akin to a marriage but only on remarriage. It is usually by way of an agreement between the parties that the additional condition relating to the cessation of payment of maintenance on the cohabitation with a third party is added.

Marriage entails that the parties establish and ‘maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another’. One of the effects of marriage is the reciprocal duty of support. This duty of support does not exist, in circumstances such as these, if there is no marriage.

In Volks NO v Robinson and Others the proceedings had been initiated by Mrs Robinson who had been a partner in a permanent life partnership with Mr Shandling for a period of 16 years until his death in 2001. The couple had not been married, although there was no legal obstacle to their marriage. Following the death of Shandling, Robinson submitted a claim for maintenance against his deceased estate. The executor of the estate, Volks, rejected her claim because she was not ‘a survivor’ as contemplated by the Act. Skweyiya J said at paras 55 – 56: ‘Mrs Robinson never married the late Mr Shandling. There is a fundamental difference between her position and spouses or survivors who are predeceased by their husbands. Her relationship with Mr Shandling is one in which each was free to continue or not, and from which each was free to withdraw at will, without obligation and without legal or other formalities. There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouse’s rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married. The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in section 2(1) of the Act falls within the scope of the maintenance support obligation attached to marriage. The Act applies to persons in respect of whom the deceased person (spouse) would have remained legally liable for maintenance, by operation of law, had he or she not died.’

If regard is had to the decision of Cohen, that it cannot be read into s 7(2) of the Act that the maintenance will cease when the recipient of the maintenance lives as husband and wife with another, as an express agreement to that effect can be amended by the maintenance court. Having regard to the factors that should be taken into account when determining whether the defendant ought to pay maintenance for the plaintiff, in terms of s 7(2) of the Act, the factors mentioned are not exclusive.

When taking into consideration the factors mentioned in s 7(2) of the Act to determine whether the defendant is liable to pay maintenance the following emerge:

(a) The existing and prospective means of each of the parties and the parties’ respective earning capacities.

(b) The financial needs and obligations of the parties. It is clear that neither of the parties can live lavishly, but they are not destitute.

(c) The age of the parties.

(d) The duration of the marriage.

(e) The standard of living of the parties prior to the divorce.

(f) The conduct of the defendant insofar as it may be relevant to the breakdown of the marriage.

The facts of this matter differed materially from Carstens; SP v HP; and Qonqo. It is immaterial whether the defendant was unable to support the plaintiff and their son, or whether he was merely unwilling to do so. Other legislation also makes it clear that the legislature envisaged that a man can be supported by two women. In terms of the provisions s 8(4) of the Recognition of Customary Marriages Act 120 of 1998, a court dissolving a customary marriage has the powers contemplated in ss 7, 8, 9 and 10 of the Act. This has the effect that with polygamous customary marriages a husband will have the right to be supported by more than one wife, post-divorce, if circumstances demand it. Although it might have been a concept that was unacceptable in a previous dispensation, the concept is not unacceptable today. The court was of of the opinion that in the circumstances of this case it could not be said that it is against public policy that the defendant should be liable to pay maintenance to the plaintiff; there is no legislative prohibition and the court found that there was no general public policy to that effect or moral prohibition.

When billionaires divorce


When dealing with high net worth and multimillionaires divorce matters a divorce attorney must make sure to employ the best possible experts as part of the legal team, this is especially so if the assets at stake run into millions. I was involved as the divorce attorney of a client in a recent matter where two British citizens divorced in South Africa with assets across the globe that ran into millions of rands. In matters such as these various expert witnesses may be employed to lead evidence on behalf of a party to the divorce proceedings, consisting of forensic auditors, valuers, art experts, industrial psychologists, child psychologists, immigration experts etc.

In this matter I was fortunate to work with one of Britton’s top leading Family Law Barristers Richard Todd QC who rendered an opinion on the division of the matrimonial assets in this divorce case as far as it relates to UK law. Richard is an Oxford scholar who won the Hugh Bellott Prize (Highest Placed in the Oxford University Public International Law Finals) and who obtained the highest awards available to a practising Silk: The Chambers & Partners “Family Law Silk of the Year “ and The Lawyer’s “Hottest Family Law QC”. Richard have given expert evidence of English law to the courts of Australia, Belgium, the Cayman Islands, the Channel Islands, Cyprus, France, Germany, Gibraltar, Hong Kong, India, Italy, New Zealand, South Africa, Spain and the USA and appeared in over 4000 matrimonial cases with a long list of report cases, needless to say the identity of former clients is confidential. However former clients include twelve Billionaires (Sterling) and two Oscar winning actors (plus another three who have been nominated).

In this matter the parties were married in England and subsequently immigrated to South Africa. In such a case the matrimonial property regime of England would apply to their marriage and English law would always apply to their marriage. In a case such as this and where the divorce is contested a South African court could divorce them but, the court would have to apply English Law. It is interesting to note that if a South African couple is on holiday in England and decides to get married, they would automatically marry in community of property and not according to English law.

The test is the husband’s domicile as at the date of the marriage, i.e. what country the husband considered to be his permanent home plus his mental intention to remain there indefinitely. Domicile is defined as the principal place of residence of an individual. This is determined primarily by intent.

Thus, if the husband regarded his place of domicile to be Cape Town at the time of the marriage, the parties would be married according to the laws of South Africa and not England and their type of marriage (matrimonial property regime) would be one in community of property. For the marriage to have been out of community of property, the parties would have had to enter into an antenuptial contract in South Africa before leaving for holiday. If they failed to do so, they would have to apply to court to register an antenuptial contract, postnuptially.

About the author:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Email: bertus(@)divorceattorney.co.za

Protecting Your Assets in a Divorce


The news of Kim Kardashian divorcing her husband after 72 days of marriage, highlights why it is important for business owners to make sure that their marital regime is governed in terms of an Antenuptial contract .  An  Antenuptial contract is the most cost-efficient and reliable pre-marital contract that can protect business assets in the unlikely event of a divorce.  An Antenuptial contract is a pre-marital contract between two parties entering into a marriage which regulates what happens to a spouse’s assets at the time of a divorce.  It sets forth how marital property will be divided in the event of a divorce.

A well drafted Antenuptial contract can save you time and money on litigation costs during a divorce and prevent a battle over the ownership of a business and other assets.  The more issues covered in the Antenuptial contract, means one less issue to litigate over during a divorce.  Therefore, it is a prudent investment to make prior to getting married.  One of the most important provisions a business owner can have in a Antenuptial contract is a provision addressing the appreciation of individual pre-marital assets (assets you possess prior to entering the marriage).

For example, let’s say your business, an asset, is worth R 6 million prior to getting married.  At the end of your divorce, your asset is worth R 12 million.  Your spouse could be entitled to half or more of the R 12 million appreciation during the marriage.  However, if you have a valid and enforceable Antenuptial contract whereby you and your partner agree that pre-marital property and any growth thereon is excluded at the start of the marriage, then such assets will not be taken into account for purposes of an accrual.

Marrying in terms of an Antenuptial contract (out of community of property) can also help limit your liability for your future spouse’s debts and prevent you from inheriting this debt during the marriage and divorce.  Remember, creditors can go after marital property- i.e., your business if you are married in community of property.

Antenuptial contracts may be unenforceable if certain formalities are not followed. A common attack to a Antenuptial contract is if both spouses were represented by the same attorney or one spouse was forced into the contract and did not really know what the consequences are. It is critical for you and your spouse to have separate attorneys who are independent of one another during the drafting and negotiation of the Antenuptial contract or at least, if you do go to one attorney, make sure that the attorney explains the pro’s and con’s and give the other spouse and option to discuss the agreement with another attorney.

An Antenuptial contract or pre-nuptial agreement must be entered into before marriage through a notary public, if not the marital regime by default will be that you are married in community of property. To change your marital regime later after divorce is costly and can only be accomplished by way of a court application in the High Court.

Another requirement for a valid and enforceable Antenuptial contract agreement includes the use of clear language in the agreement and terms that are fair. It is important both you and your future spouse have sufficient time to review, negotiate and execute the Antenuptial contract.  You and your future spouse want to avoid reviewing and signing the Antenuptial contract six hours before the wedding and while under duress.  Therefore, you should both have sufficient time to review the Antenuptial contract and formally execute it.  By undertaking these measures, you can protect your business and assets with a valid and enforceable Antenuptial contract.

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