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Summary Family Law in South Africa - Family law 214
Family Law in South Africa University Summaries
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FAMILY LAW 214SU 6
THE PATRIMONIAL CONSEQUENCES OF MARRIAGE
Learning Aims:
1. Give an overview of the different matrimonial property systems
2. Indicate the ways in which an existing matrimonial property system may be varied
3. Explain when community of property ensues and when it does not
4. Explain what equal management, independent management, and joint management of the joint estate entails
5. Indicate what the general juristic nature of a marriage out of community of property entails
6. Explain the validity requirements for an ante-nuptial contract
7. Explain under which circumstances an ante-nuptial contract can be amended stante matrimonio
8. Indicate what the content of an antenuptial contract entails
9. Explain when the accrual system is applicable
10. Describe the purpose of the accrual system and provide a basic explanation of what this system entails
Prescribed Cases:
(a) Bopape and Another v Moloto 2000 (1) SA 383 (T)
(b) Gumede v President of the RSA 2009 (3) SA 152 (CC)
MATRIMONIAL PROPERTY LAW
• Matrimonial property law = set of legal rules which govern the patrimonial consequences of marriage and divorce
• Determines the patrimonial / financial consequences of concluding and dissolving a marriage
• The rules regulate the financial relationship between spouses (inter partes) during and after the marriage
- They also determine the relationship between spouses and third parties
- Therefore, the rules have important consequences both for the relationship between:
(a) Spouses inter se
(b) Spouses and their creditors
OVERVIEW OF MATRIMONIAL PROPERTY SYSTEMS (MPS)
• The Matrimonial Property Act enables prospective spouses to choose between 3 matrimonial property systems:
(1) In community of property
(2) Out of community of property – without the accrual system (excluding profit and loss)
(3) Out of community of property – with the accrual system
• Note:
- The patrimonial consequences of a marriage in community of property come into existence by operation of law
- The patrimonial consequences of a marriage out of community of property stem from the provisions of the
antenuptial contract that the spouses conclude
(1) MARRIAGE IN COMMUNITY OF PROPERTY
• = a default position – marriage in community of property is regarded as the general/primary matrimonial property
system in SA
- When 2 people enter into marriage – there is a rebuttable presumption that they are married in community if
property
• One joint estate comes into existence at the time of the conclusion of the marriage
- The estate consists of all the assets and liabilities that both spouses had prior to concluding the marriage
1
,• Spouses manage the joint estate by means of a system of equal control
- i.e., parties are co-owners of all the assets in the joint estate – in equal and undivided shares
Matrimonial property system and customary marriages
® Under customary law – it is possible for a polygynous marriage to be in community of property in respect of one
wife (usually the first wife)
Ø And to be out of community of property in respect of all other wives (subsequent wives)
® The legal position is possible only under the following circumstances:
1. The marriage became polygynous after the commencement of the Recognition of Customary Marriages Act
(RoCMA) – that is, if the husband married his second wife / any subsequent wife after the commencement
of the Act
2. If the husband failed to obtain court approval of an antenuptial contract to regulate his polygynous marriages
under s 7(6) of the Act
® The RoCMA itself does NOT provide for such consequences – rather, the consequences resulted from the
decision of the SCA in MN v MM
(2) MARRIAGE OUT OF COMMUNITY OF PROPERTY
Marriage out of CoP with the accrual system
• Prospective spouses can conclude an antenuptial contract to exclude both community of property and the accrual
system
• In such a case the patrimonial position of the spouses after the conclusion of the marriage = similar to their position
prior to the marriage
- Both spouses retain their own separate estates consisting of all the assets and liabilities they obtained before and
after entering into marriage
- Each spouse can act as they wish iro their estate
- Spouses are NOT liable for each other’s debts – subject to the principles of household necessaries
Marriage out of CoP with the accrual system
• All marriages out of CoP automatically include the accrual system – unless it is explicitly excluded by the spouses in
an antenuptial contract
- This system will be applicable to the marriage by operation of law
• The consequences of a marriage out of CoP:
(a) There are 2 separate estates that the spouses administer independently
(b) The spouses are also NOT liable for each other’s debts – subject to liability for household necessaries
(c) The accrual system comes into operation only at the time of the dissolution of the marriage – irrespective of
whether it is terminated by death/divorce
• The main disadvantage of marriage out of CoP without the accrual system:
- One spouse cannot share in the accumulation of the other spouse’s estate on the dissolution of the marriage
- This disadvantage is counteracted by the operation of the accrual system
Ø With the accrual system – the spouse whose estate has shown the smaller accrual can share in the growth of
the other spouse’s estate
Ø This position is generally regarded as more equitable than that of total separation of property (excluding the
accrual system)
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, AMENDMENT OF THE MATRIMONIAL PROPERTY SYSTEM
IMMUTABILITY PRINCIPLE
• The MPS chosen by the spouses has important consequences NOT only for them (inter partes) – but also for third
parties and their legal relationship with the spouses
• Immutability principle = where the is NO valid way for a married couple to alter their chosen matrimonial property
system after the conclusion of the marriage
• The MPA has relaxed this principle – and spouses may now change their matrimonial property system by means of a
court order
• In Honey v Honey – the court decided that an informal amendment by the spouses had NO legal consequences – not
even between the spouses
• It is, nevertheless, possible for the spouses to reach an agreement operating only between themselves (inter partes) –
that adjusts some of the consequences of their matrimonial property regime
- E.g., spouses married out of community of property are allowed to enter into a universal partnership with each
other under certain circumstances
- They may also alter/cancel the stipulations of a donation agreement contained in an antenuptial contract
AMENDING THE MATRIMONIAL PROPERTY SYSTEM DURING THE MARRIAGE
Application For The Division Of The Joint Estate
• According to the rules of the common law – a spouse married in community of property could bring a unilateral
application to a court asking for an order immediately dividing the joint estate between the spouses
• The common-law remedy is now contained in s 20 of the Matrimonial Property Act
- According to s 20(1) of the MPA – the applicant must prove to a court that:
i) The behaviour or intended behaviour of the other spouse is seriously prejudicing or is going to seriously
prejudice the applicant’s interest in the joint estate
ii) The order would NOT prejudice other parties
Amendment ito s 21 of the MPA
• It is possible for spouses to amend their MPS by way of a postnuptial agreement under certain conditions
- The spouses must also comply with certain requirements
Procedure
• S 21(1) of the MPA requires that the spouses must bring a joint application before the HC requesting permission to
amend their matrimonial property system
• The court may order that the existing matrimonial property system is NO longer applicable to the marriage
- The court will make such an order only if it is satisfied that:
(i) There are sound reasons for the proposed change
(ii) The spouses have given sufficient notice of the proposed change to all their creditors
(iii) No other person will be prejudiced by the proposed change
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, Ex parte Lourens et Uxor
The court set out the procedure for s 21 applications in greater detail and laid down the following guidelines:
® The spouses must set out the suggested new MPS in a notarial contract and present it to the court
® The spouses must prove to the court that they gave sufficient notice of the intended amendment to all interested
parties
Ø They must give the notice timeously – at least 2 weeks prior to the hearing
Ø They must deliver it by way of registered post
Ø In addition, they must publish the notice in the Government Gazette and in 2 local newspapers
Ø The notice must state the date of the hearing
Ø They must also send both the notice and a copy of the notarial contract to the Registrar of Deeds
® The spouses must prove that the alteration will not adversely affect any third parties
Ø They must provide the court with sufficient information regarding their assets and liabilities – to make it
possible for the court to make such an assessment
Ø The notarial contract must include a clause protecting the rights of current creditors
AMENDMENT OF MATRIMONIAL PROPERTY SYSTEM UNDER THE RECOGNITION OF CUSTOMARY
MARRIAGES ACT
• S 7(4) of the RoCMA also makes it possible for spouses in a customary marriage or marriages entered into before the
commencement of the Act – to change their MPS by application to court
• They must jointly apply for leave to change their MPS and satisfy the court that:
(a) There are sound reasons for the proposed change
(b) Sufficient written notice of the proposed change has been given to all creditors for amounts exceeding R500 /
such other amount as may be determined by the Minister of Justice by notice in the Government Gazette
(c) No other person will be prejudiced by the proposed change
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