Consider the set of facts in the block below and advise whether Mrs Q will be entitled

Question

to claim the property as stipulated in the ante-nuptial agreement. You must also do
this in approximately 150 words (no more). (4)
The parties had been married and divorced twice before. Both of these divorces were the
result of Mr Q having extramarital affairs. Mr and Mrs Q were married again (i.e. for the third
time) in 2000 and divorced in 2010. The antenuptial contract entered into before the final
marriage in 2000 provided that if Mr Q was the cause of a divorce due to an extramarital affair,
he would have to provide Mrs Q with a fixed property to the value of R 200 000 (with an
escalation value of 12% per annum from the date of the marriage) within three months after
the divorce. During the third marriage, Mr Q indeed had an extramarital affair with Mrs Y.
During the divorce proceedings in 2010, Mrs Q attempted to rely on the clause of the
antenuptial contract and claimed the property to which she believed she was entitled. Mr Q
argued that the clause was not enforceable. He argued that the clause was contra bonos
mores because it encouraged the dissolution of the marriage.

Answer 1

Mrs Q will be entitled to claim the property as stipulated in the ante-nuptial agreement provided that the clause is found to be enforceable. The fact that Mr Q had an extramarital affair during their third marriage and that the antenuptial contract provided for a property settlement in such a situation satisfies the condition for Mrs Q to claim the property. However, Mr Q has raised a defense that the clause is not enforceable because it encourages the dissolution of the marriage. To determine whether this defense holds, the court will have to evaluate the validity of the clause in light of public policy considerations. While individuals are generally entitled to enter into contracts on their own terms, any contractual provision that runs counter to public policy may be held to be unenforceable. If the court finds that the clause is valid and not against public policy, Mrs Q will be entitled to claim the property as stipulated.