In celebrity circles, defining marital expectations in writing is commonplace. Mark Zuckerberg’s wife Priscilla Chan reportedly made the Facebook mogul sign a relationship contract stipulating that they’ll have one date as well as a minimum of a 100 minutes of non-virtual alone time per week.

Jessica Biel apparently signed an agreement with hubby Justin Timberlake stating that he’ll pay her $500 000 if he cheats. And Nicole Kidman’s hubby, former cocaine addict Keith Urban, forfeits any claim to his wife’s megabucks if he falls off the wagon.

Even when there isn’t major money involved, some ordinary couples prefer to add “lifestyle clauses” to their antenuptial contracts. Yet, according to Johannesburg-based attorney Jennifer Scholtz, these clauses (especially those relating to infidelity) are often unenforceable upon divorce.

“Lifestyle clauses are generally seen as guidelines for behaviour within the marriage and there are usually financial penalties for failure to comply with the terms. However, it’s very rare to insert one into an antenuptial contract in SA and an attorney would usually advise a client that it defiles the sanctity of marriage and is against public policy,” she says.

While infidelity clauses are quite common in the US, Scholtz says difficulties arise regarding what constitutes cheating. “The agreement must clearly define what constitutes infidelity and proof thereof,” she says. “In a criminal case in South Africa, for example, the guilt of the accused would have to be proved beyond a reasonable doubt.”

Psychological perspectives

What’s perhaps more of an issue is the psychological impact of the desire for such a contract. Sandra Brownrigg, a Johannesburg-based clinical psychologist specialising in couples counselling, believes that issues like infidelity, weight, sex and finances are vital for couples to discuss before entering into marriage or even a relationship.

“For example, if weight’s an important issue for you, you and your partner need to discuss it in an open way where you both hear and understand each other, rather than trying to make it a legal requirement,” she says.

“Putting such issues into writing sets a lot of firm, non-negotiable criteria and rules for the couple,” she adds. “It pushes many buttons in people and if they don’t have strong, confident communication within their relationship, they may not know how to address it. Besides, contracts like these aren’t realistic: what if you develop health issues that cause weight gain, something that’s out of your control? You’ll feel as if you’re letting your partner down. Consistent, continual communication is vital as life circumstances change.”

MARCH 2016 DC FOOTER