Using prenuptial contracts to allocate relationship property: The South African experience

While the 2014 Law Commission for England and Wales Report on matrimonial property agreements signals a recent shift towards stricter legal enforcement of prenuptial contracts in these jurisdictions, South African common law has, alongside its default system of community of property, long recognised and enforced prenuptial agreements. In practical terms, people tend to conclude a limited range of prenuptial contracts, but the law permits any distribution of property which is not contrary to public policy. These contracts are for the most part strictly enforced. Parties cannot easily change their matrimonial property system and judicial discretion to deviate from the chosen property regime is relatively limited. A recent, divergent development is the use of universal partnership contracts to allocate a share of partnership property to unmarried cohabitants, who hitherto had no rights to property sharing because they fell outside the scope of protective rules which govern marriage.

Enforcing contracts within the family context leads to tensions between what appears to be two irreconcilable modes of legal thinking and regulation. This paper uses the South African example to illustrate some pitfalls and to suggest ways of mediating the status/contract conundrum. It does so by examining general policy issues like the promotion of certainty, protection of institutions like marriage and family life, protection of vulnerable people, the need to ensure effective party autonomy and gender equality and the promotion of fairness between parties to prenuptial contracts. The paper concludes by considering whether relational contract theory could expand our interpretations and the enforcement of contracts between intimate partners and other family members.

About the Speaker

Elsje Bonthuys completed her BA, LLB and LLM degrees at Stellenbosch University in South Africa and her Ph.D. on the allocation of child custody at Cambridge University. After a short stint at the bar, she has taught at Stellenbosch University and at the University of the Witwatersrand (knowns as Wits – pronounced Vits) where she has been a professor of law since 2007. Her research covers various aspects of gender and family law, and the interaction between them. However, since the beginning of her academic career she has had to teach contract law, albeit very reluctantly, because academic contract lawyers are always in short supply in South Africa. It is only since she started to conduct research on the interaction between family law and contract law in the enforcement of prenuptial contracts and universal partnership agreements that she’s found anything vaguely interesting in contract law. Her current research therefore involves the intersection between gender, contract and family law.