Fisher v Fisher and Other [1911] ZAWLD 16 (18 May 1911)

Husband and Wife - Ante-Nuptial Contract - Effect of Verbal Ante-Nuptial Agreement to be Married by Ante-Nuptial Contract - Evidence - Conversation between Spouse and Attorney.

In a matrimonial dispute, where the point at issue was whether or not the parties, prior to the marriage, had agreed to be married by ante-nuptial contract, excluding community of property, evidence by an attorney of a conversation, after the marriage, between himself and the wife concerning her rights under the marriage was tendered on behalf of the wife in support of the existence of such agreement.

Held, that the evidence was not part of the res gestae, and was inadmissible.

A verbal agreenient, prior to marriage, whereby parties agree to be married by ante-nuptial contract, implies an agreement to be bound by an ante-nuptial contract, executed in the ordinary form customary in South Africa, excluding community of property, profit and loss, and the marital power; and where no such formal contract has been executed before marriage, either spouse may compel the other to execute such formal contract.
(Ex parte Weight and Weight, 1906, T.S. 707, applied).