Can an Antenuptial Contract Waive Your Right to Maintenance?

It is a common misconception that an Antenuptial Contract (ANC) can dictate every financial outcome of a divorce. In ST v CT, the Supreme Court of Appeal assessed whether a spouse can waive their future right to claim maintenance inside an ANC.

The Legal Question

Before getting married, a couple signed an ANC where the wife explicitly waived her right to claim future spousal maintenance upon divorce, in exchange for certain property donations. Years later, they divorced, and the wife claimed she needed maintenance. The question for the Court was: Is a pre-nuptial waiver of post-divorce maintenance legally enforceable?

What the Court Decided

In ST v CT [2018] ZASCA 73, the Supreme Court of Appeal unanimously agreed that the maintenance waiver was unenforceable, though the judges used different reasoning[cite: 6].

The Majority View (Majiedt JA): The majority held that a pre-nuptial waiver of maintenance is void ab initio (invalid from the start)[cite: 6]. Section 7 of the Divorce Act grants courts the statutory power to award maintenance to prevent inequity[cite: 6]. Attempting to contract out of this statutory protection before marriage—when future needs are completely unknown—is contrary to public and legal policy[cite: 6].

The Concurring View (Rogers AJA): The concurring judgment reasoned that while such a clause might not be automatically void, the Divorce Act gives the court the overriding discretion to disregard it[cite: 6]. In this case, the court used that discretion to override the waiver because of the long duration of the marriage (25 years), unforeseen changes in circumstances, and the pressure under which the wife signed the ANC[cite: 6].

What This Means for Couples

• You cannot predict the future: Are you assuming that an ANC can waive every future financial claim?
• Statutory protections remain: Courts retain the power to assess maintenance based on age, earning capacity, and the standard of living during the marriage.