The Constitutional Court has dismissed an application which sought an answer as to whether or not a post-nuptial agreement entered into by the parties during their marriage – without court supervision – is valid and enforceable, says a TimesLIVE report.

The court said yesterday that since the constitutional issues raised in this case were raised for the first time in the apex court, it was not in the interests of justice to grant the woman leave to appeal.

The case has been through the Regional Court, the High Court and the SCA.

In August 1993, a female accountant and a male chartered accountant were married out of community of property, with the exclusion of accrual.

In 2014, the woman, Mrs AM, drafted a document that purported to be a post-nuptial agreement. The terms of the agreement, which the husband eventually signed, were that her husband would set aside the ante-nuptial contract, Mrs AM would be entitled to half of his estate, and that the husband would pay her maintenance.

When the man issued summons for divorce in the Mbombela Regional Court in January 2015, Mrs AM sought a declaratory order to the effect that the post-nuptial agreement was valid and binding on the parties.

While the Regional Court granted a decree of divorce, it held that the post-nuptial agreement was invalid and unenforceable.

However, the High Court held that the agreement was enforceable, but the man’s appeal to the SCA was successful with that court setting aside the High Court order.

That’s when woman approached the Constitutional Court.

In a unanimous judgment, Justice Nonkosi Mhlantla found the woman's attack on the judgment of the SCA was misplaced.

In her arguments before the Constitutional Court, the woman said her case will affect every person in SA who is married out of community of property. However, Mhlantla said a proper interpretation and analysis of the judgment reveals the SCA did not prescribe a bar on all agreements between spouses married out of community of property.

She said the SCA finding only related to their agreement, whose terms appeared to have the effect of changing the parties’ matrimonial regime without being sanctioned by a court order.

Mhlantla said the woman also raised new issues before the Constitutional Court that the lower courts had not dealt with, including contractual freedom dignity and unfair discrimination.

Mhlantla said it was accepted the Constitutional Court was better positioned when it was assisted by well-reasoned judgments from other courts on a particular issue.

'Since the constitutional issues are raised for the first time in this court, it is not in the interests of justice to grant leave to appeal,’ Mhlantla said.

Full TimesLIVE report