Till the broken dishwasher us do part ...

04 September 2016 - 02:00 By NIVASHNI NAIR


To love, honour, wash the dishes, have sex an agreed number of times - and pay penalties for infidelity. These are some of the "lifestyle clauses" that have made their way into South African antenuptial contracts.But divorce lawyers say these "nonsense" clauses are not legally binding as antenuptial contracts come into effect only at the end of a marriage, either with divorce or death.In the most recent case, as South Africa began marking Marriage Week from Thursday, Durban accountant Navin Badri was asked by his client, the groom-to-be, to read his marriage contract and explain the financial aspects.block_quotes_start If they wanted to get a divorce, you couldn't say the dishwasher broke and you didn't do it block_quotes_endHe was surprised by this clause: "Should the washing machine or dishwasher break or stop working: both parties consent to do the dishes and wash the clothes."So he followed up with the attorney, who told him that many divorce matters start because spouses enter into marriage without any knowledge of how to do household chores. Or, if they can, they are unwilling.In the US, lifestyle clauses include the number of times in-laws may visit, if the children are raised vegetarian, a "no-diaper clause" that specifies no children, or "fling fees" for infidelity, an agreement which actress Catherine Zeta-Jones is believed to have with husband Michael Douglas.Cape Town lawyer Bertus Preller had a client who specified in the antenuptial contract that she would get custody of the pets in the divorce."A colleague once told me that he had a client who insisted on a clause stating how often a couple would have sex.story_article_left1"There was one contract with an infidelity clause that stipulated that the wife would have no claim against the accrual in case of her infidelity, but the same waiver did not apply in respect of the husband, which rendered the contract to be against public policy," he said.Preller said the terms and conditions of the contract should not be illegal, immoral or contrary to public policy.In a recent case, the High Court in Cape Town found that a marriage contract contained provisions "which are difficult to imagine any right-thinking woman would have agreed to have incorporated in an ANC [antenuptial contract]".Preller said: "In this case, the husband forced the wife to sign a contract which stated that the wife waives any present or future right to claim maintenance for herself."Durban attorney Retha Meiring said attorneys should advise their clients that the courts would not uphold bizarre clauses. "Washing of the dishes will have no legal effect or consequence."Meiring has had many clients who almost broke up before marriage because the terms and conditions of the contract, particularly pertaining to exclusion of assets, became so contested.Norton Rose Fulbright candidate attorney Jade Aspeling said that not washing dishes did not provide valid grounds for divorce.Irretrievable breakdown of a marriage or continuous unconsciousness or mental illness were the only grounds for divorce in South Africa."If they wanted to get a divorce, you couldn't say the dishwasher broke and you didn't do it. You couldn't use a breach of the unusual clause to justify a divorce or a breakdown in marriage," she said.sub_head_start It's in the heart -- not in a contract sub_head_endJAY Naidoo has done the dishes. Even as a minister in Nelson Mandela's cabinet he changed his children's nappies and burped them after his wife breast-fed them at 4am.The struggle stalwart has been married to Lucie Pagé for 25 years and believes that couples who thrash out chores in antenuptial agreements should not be tying the knot.story_article_right2His secret to a happy marriage: "Lots of humour. No competition. Honesty. Respect and understanding the other person's dreams and ensuring that those paths converge over time. And I always have the last word: 'Oui, ma cherie.' (Yes, my darling)."Naidoo met Pagé when she was working as a journalist on a Canadian series about South Africa when Mandela was freed in 1990."She attended the relaunch of the ANC Youth League in Soweto where I spoke. We connected that night when she was recording a documentary on jazz with the African Jazz Pioneers," he said. "She wanted to talk about the political situation and I said I was too tired, but she could stay and have a drink. We spent the night talking about our mothers."Naidoo said the biggest challenge in their marriage had been a bout of depression suffered by Pagé over her separation from her son from a previous relationship, Leandre. "It made us realise that depression may not be a broken leg but it is as debilitating," Naidoo said.The couple have three children: Leandre, 29, Kami, 23 and Shanti, 21.nairn@sundaytimes.co.za

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