​RM v BM 2017 (2) SA 538 (ECG)

In this case for divorce, the plaintiff wife put in issue the validity of the antenuptial contract. Its clauses one and two excluded community of property, and of profit and loss; clause three made the marriage subject to accrual; clause four listed inter alia the assets comprising the husband's estate for calculating accrual; and clause five appeared to exclude those assets from his estate.

The court ruled that clauses four and five were irreconcilably contradictory, and rendered D the antenuptial contract void for vagueness. Ordered, that the contract was void, and the parties were married in community of property.

The decision in MB v DB 2013 (6) SA 86 (KZD) concerned a divorce action between parties married out of community of property with the application of the accrual system. The issue was which party bore the onus of proof with regard to the nature and quantum of the assets excluded in their antenuptial contract from forming part of the accrual in the defendant’s (the husband’s) estate. The plaintiff (wife) relied on the evidence of a chartered accountant to prove the value of the husband’s estate and, therefore, of her potential share of the accrual. The husband led no evidence to demonstrate how he had dealt with the excluded assets over time, instead contending, inter alia, that: 

1. his ex-wife’s claim was premature, since the extent of the assets and liabilities could be determined only as at the date of divorce; and 
2. there was no proof of the current value of his estate because the evidence that she had sought to rely on was incomplete and in any event hearsay and therefore inadmissible.

Lopes J held that it was the husband, being the one in possession of all the facts relating to the assets reflected as excluded in the antenuptial contract, who bore the onus of proving which assets were to be excluded and why; to demonstrate what had happened to those assets, how they were converted from time to time, and what their present values were that fell to be excluded from the calculation of his net worth. 
 
The operative moment when the value of the respective estates of the parties had to be assessed was at litis contestatio, (ie, close of pleadings) not when the divorce order was made. 
 
Because the husband led no evidence to demonstrate how the excluded assets were dealt with by him from time to time, the court held that it would not be possible to determine what had happened to those excluded assets without making reasonable deductions from the discovered documents. 
 
The court reasoned that South African courts should follow the approach to evidence adopted in a number of English cases when dealing with failure by a party to discharge his or her duty to disclose financial information in divorce proceedings. In terms of the approach followed in English law, courts were entitled to draw inferences (where they  can be properly made) and to take notice of inherent probabilities in deciding whether or not assets formed part of the non-discloser’s estate. 
 
The court accordingly ordered the division of the husband’s estate, the exact details of which fall outside the scope of the present discussion. The husband was ordered to pay the costs of the present action.