A woman challenged the signing of an antenuptial contract with her 90-year-old husband, alleging that he and their lawyer friend made her sign a document without fully disclosing its content just before getting married.
The woman, 60, referred to as BCB, had known her husband, 90, referred to as LLB, since she was a child, as he was friends with her late father.
The two entered a romantic relationship in 2017, and according to BCB, LLB expressed his love for her and wanted them to get married before his 90th birthday. The two decided to get married on October 7 2023.
The couple also had a close friendship with Jurgens Johannes Tubb, an attorney, who acted as the master of ceremonies at their wedding. However, according to BCB, an antenuptial contract was signed without her knowledge when she was called into Tubb’s office to sign a document.
BCB had approached the Cape Town high court where she requested acting judge van den Berg to set aside the antenuptial agreement and for the court to declare that the marriage was to be in community of property. Tubb was listed as the second respondent as he facilitated the signing of the antenuptial contract which she allegedly agreed to and signed.
However, she told the court that throughout conversations with her then-soon-to-be-husband, no discussion was had about the marital regime but that she intended to marry in community of property.
She alleged that on October 3 last year, Tubb, whom she had known for 20 years and trusted as an attorney and legal adviser for the past 10 years, called her and requested she visit his office the following morning to sign a document. According to BCB, Tubb described the document as ‘insignificant’ though it related to the wedding.
The next day, she went to Tubb’s office, and while alone together, she alleges that Tubb briefly showed her a document which she only got a glimpse of but could not determine its content. Due to her complete trust in Tubb, she said she signed the document without asking questions while Tubb also failed to give details about the document’s content.
In May this year, BCB said she overheard a conversation between two strangers at a coffee shop about antenuptial contracts and the requirements for signing it before the wedding. This triggered suspicion regarding the document she alleges Tubb made her sign.
She, however, chose not to confront Tubb and her husband about the document she signed, but instead called Tubb’s office and requested a copy of the document, which, to her dismay and surprise, was an antenuptial contract.
Instead, she approached her lawyer, who sent a query to Tubb to raise “reservations and concerns” by BCB about the antenuptial contract.
A third respondent, Riёtte Smuts, an attorney and notary who practises with Tubb, confirmed that the couple went to their office on October 3, where Tubb explained the various matrimonial systems available and the consequences of each. Smuts said she again explained the same thing to the couple and they chose to get married in community of property without the accrual system.
According to BCB, Smuts had gone to LLB's house the same day that she was at Tubb's office to sign a document, where an antenuptial agreement was signed by LLB and two witnesses. She said she was not present when that happened.
In her explanatory affidavit, however, Smuts stated that BCB and LLB signed and executed the antenuptial contract in the presence of the witnesses.
Smuts also confirmed that the witnesses who signed the antenuptial contract were the wife’s friend who helped with the wedding and a lady who helped prepare the cutlery for the wedding. However, she did not have their names or contact details.
BCB received confirmatory affidavits from the two witnesses who signed the document. According to her, both witnesses denied that she signed the documents in their presence.
Unfortunately, judge Van den Berg said, both witnesses only filed an affidavit which merely confirmed the wife’s version and contained no substantiated allegations.
In opposing the motion, the three respondents — LLB, Tubb and Smuts — stated the wife has had numerous WhatsApp discussions concerning the conclusion of the antenuptial contract before the wedding.
The respondents state that BCB clearly indicated that she understood the contract and further stated that she possessed her own properties and did not want financial support from LLB.
Tubb also did not charge the couple for drafting the contract as it was a wedding gift which BCB allegedly expressed gratitude for in an email to Smuts in response to an email to confirm the registration of the antenuptial contract.
In addition, BCB signed a will on April 17 this year where she clearly stated she was married out of community of property, the three respondents said.
But Van den Berg found there was a serious dispute of facts in the matter and relief that is based on allegations of misrepresentation or fraud are usually dealt with by way of action proceedings and trial.
“I inquired with counsel whether [BCB] and [LLB] intended to continue their marriage, given [LLB]’s advanced age, the acute nature of the allegations, and the apparent effect on their relationship. I was informed from the bar that [LLB] had, in the week preceding the argument, instituted divorce proceedings against [BCB]. However, [BCB's legal representative] indicated that [she] does not believe that the marriage has broken down irretrievably despite the seriousness of what alleges to have occurred. The parties will inevitably need to resolve their disputes at trial,” Van den Berg said.
Without making findings on the merits of the allegations and counter-allegations, Van den Berg would have dismissed the case on the merits as, in his view, probability weighed more in favour of the husband, LLB. This was, however, circumvented by the wife’s last-minute application for the matter to be referred for oral testimony.
“This important aspect fortifies my finding that I should not exercise my discretion in favour of the [wife] to refer the matter for evidence or trial. I am not inclined to accept the invitation by ... [the wife] to refer the matter to oral evidence and for me to hear such evidence. There are no clearly defined disputes, and I accept that evidence would need to be presented not only on one single aspect but on the main issues and surrounding circumstances that give rise to the registration of the antenuptial contract.
“Given the materiality of the factual disputes which are incapable of being resolved on the papers and the fact that the disputed facts were forceable considering the serious allegations levied against the [Tubb] and [Smuts], as well as the correspondence exchanged between the parties’ legal representatives before the launching of the application, I am satisfied that the only appropriate order is to dismiss the application. I make no finding regarding the merits of any of the parties’ contentions and the [wife] is free to take whatever action she may be advised to adopt,” ruled Van den Berg.
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