My Husband and I were married out of community of property excluding the accrual system, we are now in the process of divorce and I intend to approach the Court to rectify our anti-nuptial agreement to include the accrual system on the basis that just before our marriage my husband and I agreed thereto verbally. Can this be done?

The short answer is yes if the following principles apply:

Rectification of a written agreement is a remedy available in instances where the agreement, through common mistake, does not reflect the true intention of the contacting parties or where it erroneously does not record the agreement between the parties. The predominant requirement for rectification is a common continuing intention of the parties, which is not reflected in the agreement. To allow the words the parties actually used in the documents to override their prior agreement or the common intention that they intended to record is to enforce what was not agreed, and so overthrow the basis on which contracts rest in our law.

In the matter between PV v EV, under case number: 843/2019 a reportable case, wherein the facts were more or less the same as in the question supra, wherein the respondent Me Van Der Merwe approached the court for Rectification of the ante-nuptial agreement on the basis that ante-nuptial agreement through a common mistake, did not reflect the true intention of the parties or it was erroneously not recorded in the agreement, the Court held the following.

At paragraph 18 of the judgement it was held that;

“The legal principles concerning matrimonial property are also well established. Parties are allowed to choose their own matrimonial property regime. Community of property is the first choice at common law and it applies unless expressly excluded by the parties. A party who asserts that the marriage is subject to a certain matrimonial property regime must prove it. (Edelstein v Edelstein, 1952 (3) SA 1 at 9H -10A. Section 2 of the Act provides that every marriage out of community of property in terms of an ante-nuptial contract by which community of property and profit and loss are excluded is subject to the accrual system except in so far as that system is expressly excluded by the ante-nuptial contract.”

Normally depending on the facts of each case evaluated individually, the ante-nuptial contract will expressly exclude the accrual system. Unless it is deleted, on the basis of a legally competent ground, the marriage will be without the accrual.

This clause can only be deleted if both parties had the intention that accrual should apply and should it be found that your husband had no intention to be married with the accrual system then no consensus was reached and the clause cannot be deleted.

Section 2 of the Act, the Matrimonial Property Act, does not require consensus to exclude the accrual system but stipulates that the accrual system must be expressly excluded in the ante-nuptial contract itself.

It is further trite that a written ante-nuptial contract is proof of the terms of the agreement between the parties and once it is registered, it cannot be amended by the parties between themselves because the effect of registration is to give notice to the world of its existence and binds other persons who are not parties to its terms, including creditors. Section 88 of the Deeds Registries Act, Act 47 of 1937 provides for authorisation by court for a post-nuptial execution of a notarial contract having the effect of an ante-nuptial contract, if the terms of the contract were agreed upon between the parties before the marriage. In the absence of such an agreement the ante-nuptial agreement will in all likelihood not be set aside.

Further in terms of Section 4 of the Act it provides that the accrual of the estate of a spouse is the amount by which the net value of the estate at the dissolution of the marriage exceeds the net value of the estate at the commencement of the marriage. Should you attempt to amend the existing contract how are you going to rectify the agreement to incorporate the necessary provision of the mentioned section?

In the matter referred to above the Court found the only avenue available to Me Van Der Merwe was to approach the Court for Rectification and further that rectification of the ante-nuptial contract was not competent in the circumstances which then entailed that the ante-nuptial contract stood.

Me Van Der Merwe’s claim was dismissed with costs as the Court found that Mr Van Der Merwe had no intention to enter into an ante-nuptial agreement with the inclusion of the accrual and as such there was no common mistake between the parties.

It will therefore, depending on the circumstances and facts in your matter depend on whether the court will rectify the contract. It is advised that you approach the offices of an attorney for advice as this will be a highly technical question of law.  

Reference List:

• PV vs EV, case number: 843/2018, Supreme Court of Appeal, judgement on 30 May 2019, Van Der Merwe v Van Der Merwe ZASCA 76;
• Matrimonial Property Act, Act 88 of 1984;
• Deeds Registries Act, Act 47 of 1937.