A spouse automatically acquires an entitlement to be supported by their other spouse when their marriage is concluded. This entitlement generally ceases to exist when the marriage is terminated by divorce, unless a spouse can satisfy the court that the entitlement should continue after divorce.
In this context the court recently had to consider whether t e spouses could voluntarily waive their right to spouse maintenance in the terms of their ante nuptial contract by the inclusion of a forfeiture clause.
In his decision in WVH (2016) 4 ALL SA 260 (WCC), Judge Weinkave held “that a term of an ante nuptial contract which seeks to waive a spouses right to maintenance is contrary to public policy and unenforceable. He went further to note that generally, any purported ouster of the jurisdiction of the courts which deprives a party of a legal right or remedy is per se against public policy.”
In the decision of Schutte v Schutte, the court held that the issue of spousal maintenance must be determined by the court hearing the divorce. It is the opinion of the writer that a spouse can therefore never waive their right to maintenance prior to divorce proceedings at least being instituted.
Once divorce proceedings have been instituted, a spouse would be fully entitled to either pursue a claim for maintenance and or waive any entitlement to maintenance they may have.
