Consensus Capacity to act Formalities Executable Lawful Antinuptual contracts- do not necessarily come to an end when the marriage contracts end.
Postnuptial contracts- must know section 21 Immutability stage was when spouses chose a matrimonial property system and had to stick to it. Section 21 allows parties to comply with certain requirements and then change their matrimonial property Must apply for change jointly Sound reasons must occur for change- [facts that are valid and convincing and anchored in reality](ex parte engelbretch is authority) Creditors must receive notice from spouses of application for change No other person must be prejudiced by the proposed change The postnuptial contract will deem parties to be married in community of property until application is successful In ex parte Kros- wanted to change agreement with retrospective effect (deemed to be married from start of marriage out of community of property) Section 21 of Matrimonial Property Act- states about the regulation of FUTURE matrimonial property. In ex parte Kros judge decides that it may be changed retrospectively. Judge states that the purpose of the act is to allow flexibility. Ex Parte Oosthuizen- judge decides future must be interpreted literally and a change cannot be made retrospectively. Section 21 is deemed to be inflexible. Ex Parte Burger- married out of community of property excluding property and loss.(accrual system) They wanted to include above. It can be interpreted that said it can be implemented and the marriage may be changed retrospectively, but it must be incorporated from the date of the marriage and if the accrual system is implemented it must be done from the value of the assets at the start of the marriage. Authors Cronje and Heaton support flexibility and believe Kros case is the correct decision. Does not support judgement of Oosthuisen and Burger case( had different facts) Van Schalkwyk states that the Kros case is incorrect and flexibility is not necessary. Extra- judicial/ informal change of a marriage contract Intended change without approval and registration of postnuptial contract into s21 Honev vs Honey No change except ito of s21 Informal change not even valid inter parties (informal post- nuptial contract is VOID- not even valid between parties) Reason for decision- (general immutability principle does not allow changes except by application of section 21) (compare position with informal anti-nuptial contract [ex parte Spinazzee- said it is void but enforceable between parties) Prescribed case JW v CW added Facts Divorce proceedings Spouses married out of community of property excluding the accrual Terms of the anti-nuptial exclude partnership Parties tactically agreed to form a universal partnership conducting farming enterprise known as JPW Boerdery) Agreement to effect that all assets (both existing and future) would form assets of partnership. Legal problem: Division of assets in divorce Does universal partnership revoke or at least amend anti- nuptial contract Decision : YES- ( cant amend anti-nuptial contract informally) Ratio decidendi: Terms of anti-nuptial contract cannot be amended in this way (informally without registration to s21 Thus irreconcilable with terms of the anti-nuptial contract and thus not possible to substitute community of property with what is essentially in community of property regime. There was however no reference to the Honey case, it does however support decision. Marriage contracts of minors Requirements pg 206 Signature of minor Assistance of parent who has guardianship No need for parents consent in case of a marriage Presiding officer; if consent is required for marriage it is also required for anti- nuptial contract. Where the high court consents iit can determine manner of execution Failure to obtain necessary assistance anti-nuptial contract is VOID NB edelstien vs edelstien Effect of common law principle If minor enters into anti-nuptial contract without necessary assistance it is VOID If minor concludes marriage without marriage consent it is VOIDABLE Two possible options Marriage is not annulled The marriage is annulled S24(2) S24(1) Patrimonial consequences determined by court Section 24(2) Matrimonial Property Act If marriage of a minor is concluded without the required consent and the marriage did not get annulled the patrimonial consequences of the marriage are: The same as if the minor was a major at the time of the marriage (has full capacity to act) And any anti-nuptial contract in terms of which the accrual system is included is deemed to have been validly executed Note there is a lack of certainty Sinclair and Heaton First part is the presumption that any anti-nuptial is deemed valid Second part says only certain parts are valid Recommends clarification Visser and Potgieter Emphasises on first part All anti-nuptial contracts are valid (even those that do not include accrual) Second part is merely an example
Van Schalkwyk Only two options : in community of property or out of community of property with accrual If anti-nuptial contract does not include it is void and parties are married in community of property Cronje and Heaton If anti-nuptial contract does not include accrual whole contract is invalid Only clause that excludes accrual Thus married with accrual Heaton Constitutionally suspect (she deems it unconstitutional because some contracts are valid and others are not) Patrimonial consequences of marriages concluded outside SA Marital domicile- domicile of husband and conclusion of the marriage Problems- common law rules can no longer be simply applied Constitutionally suspect Prescribed case- AS v CS 2011 (2) SA 360 (WCC) Divorce of same- sex partners Concluded a civil partnership in the UK in terms of the UK civil partnership act (2004) Status of marriage needed to be determined Validity determined according to leci celebrationis Patrimonial consequences stated by lex domicilli matrimonii [55] principle incapable in same sex marriages] [56] legislation must address problems In case not an issue because parties concluded a deed of settlement Chapter 8- marriage in community of property Assets are co-owned by spouses Joint estate is jointly administered by spouses Spouses may also have separately administered estates (assets) Cases where COM will not arise Marriage contract- ant- nuptial or post-nuptial Matrimonial domicile of husband- law of country domiciled will determine consequences eg UKs default position is OCM Blacks before 2 December 1998- before ( out of community of property) Court order Ito s24(1)- the court can order if it is in or out of community of property Nature of marriage in community of property (note legal nature of ownership of joint assets) Assets acquired before and after marriage are combined Assets are undivided(equal division) and indivisible(cannot sell off 1 part of asset) with regard to co- ownership it is tied co ownership Free co- ownership + divisible and transferable Note Ex Parte Menzies (wanted to change matrimonial property system from in community of property to out community of property. Court described the change in position of co- ownership. Note Estate Sayle v CJR- confirm spouses married in community property co-owned all assets. During a time when husband had marital power.( dont need to study facts) Content (what are assets) Anything with a monetary value are deemed as assets. Also include rights to pension and occupation (incorporeal) Right to pension and pension interest also included Moremi case- confirms a right to occupation call fall in joint estate even though it is in-corporeal as it is still an asset. Operation of law (mere fact that you are married in community makes you co-owner of all assets) Separate estate/ assets Assets excluded in a marriage contract Assets excluded by will or deed of donation Where assets are made accountable to a fide comissio X
(married in COM) Y- fiduciaries Z-fideicommissarius (if Z becomes owner it will then become part of joint estate) Usafract of property will not form part of joint estate. Engagement gifts and gifts made with the view to marriage to the wife( not part of joint estate) All engagements gift and gifts with a view to marriage should not form part of joint estate and should be the property of the spouse. Benefits to wife under friendly societies act- no privilege a wife receives will form part of joint estate Damages for non- patrimonial loss/ satisfaction General rule: S18 (a) of MPA- satisfaction(ONLY SATIFACTION) received as a result of a delict does not fall into joint estate but becomes the separate property of the spouse. Patrimonial damages- (normal damages)- form part of joint estate. Non- patrimonial damages ( satisfaction), the distinction must be made to get all marks.
Exception s 18(b) of MPA Patrimonial damages(restricted to bodily injuries) can be claimed separately if the delict is committed by the other spouse Costs in matrimonial action-> one spousesues the other spouse for divorce based on activities out of the marriage. If they fail to convince the court the cost will now be awarded to be paid to the spouse who did not claim costs. Clothes are excluded Donations between spouses- ( donates assets to other spouse)->form part of separate estate. Proceeds of life insurance policy: Danielz case : if no beneficiary is nominated it forms part of separate estate
Oshry case: no beneficiary nominated: forms part in joint estate Beneficiary nominated rejects nomination-> joint estate Beneficiary nominated who accepts nomination : separate assets( estate)
Forfeited property ito prevention of Organised Crime Act State may declare that is an instrumentality of an offence reffered to in schedule 1 or is property associated with terrorist related activities Act authorises court to exclude inncent spouse interest in proceeds of property from forfeiture order Case; Mazibuko v National Director of Public prosecution
Replacement assets also separate from joint estate, these fruits do however form part of the joint estate
Joint debts: Co- debtors ( they share debts when married in COP) Nedbank v van zyl ( prescribed)- cannot stand surety for own debts
Which estate is liable?? Either joint estate OR separate estate of spouses Must distinguish between anti-nuptial and post nuptial debts. For anti-nuptial debts spouses are BOTH liable. Post nuptial debts: must determine if it is contractual co- debtors OR delictual action.- s19 of MPA specific order 1 separate 2joint- if joint then right of recourse( the other spouse may claim half of amount taken from joint estate at the time of the dissolution of the marriage)
Attachments of separate estates Separate assets of one spouse cannot be attached for private debts (separate estate) of the other spouse Note there is no specific order with regard to private debts.
Separate and joint estate can be attached for separate debt.
Separate estates of both spouses AND joint estate can be attached for joint debt.
NB : DU Plessis v Pienaar
8.4) SPOUSES CAPACITY TO ACT Nature of concurrent administration
s15(1) s15(2) and (3) no consent needed consent required
reasons for limitation
kotzee v oosthuizen
spouses married in COP, the one spuse died, an executor sold the matrimonial home without the consent of one spouse. The judge said NO- s15 is no longer applicable and the executor could do so without prior consent
Prior written and attested Written and attested( can be obtained after) written Oral/ informal/ tacit No consent Transfer of ownership in property Act of registering ownership in deeds office Contract of sale of property Can be obtained after the contract has been made.- can be ratified. Sales of shares etc Sale of household effects of the common household See ( e) p228 Suretyship Credit agreement investment Donations? Purchase of immovable property
Exception in ordinary course of business, trade profession in terms of S 15(6) applicable. (ABSA v De Goede (1997) 2 all SA 427 (A))-(investigated exception) Facts- Cc providing passenger services One active partner 2 or 3 silent partners Cc wanted to borrow money from the bank Had to provide surety, directors stood surety in their personal capacity for lydenburg passenger services cc Cc went bankrupt and bank claimed loan from directors Mr de Geode did not acquire wifes signature ABSA argued it was entered into in ordinary course of business ABSA won case- standing surety is what you would expect from director If you stand surety of another persons debt you need to get spouses written consent prior to the surety. If you stand surety in business trade of profession it is not needed
Ratification possible
Effect of lack of consent ABSA v Lydenburg passenger services(judgement before de geode case) Probably void Protective measures
Of 3 rd parties of spouses against each other
S15(9)a distinguish between If did not know and cannot reasonably Know= transaction deemed valid common law MPA s15(9)(B) Govender case s16(1) and (2) Distillers corp v Modise s20 Distillers corp v Modise FACTS Mr modise (spouse2), married in COP Stood surety for stillers corp He had not got spouses consent He claimed he was not liable for suretyship There was a clause asking him specifically if he had capacity to act Distillers corp said they could not have reasonably known he was married in COP Court said nobody would have doubted Modises capacity. Court concluded nobody would have known about his capacity.
Note PG231 where spouses are against each other, S15(9)(b) ( 2 requirements) If there is no agreement and the spouse 1) knew, or ought reasonably to have known consent would not be given,2) and the estate suffers a loss, THEN a right of recourse could be claimed. If a spouse unreasonable refuses consent the court can give consent S21 gives court right to divide assets of joint estate Court can move spouses rights to consent and sell assets Do not learn pg 232,233,234 Spouses capacity to litigate( capacity of spouse to sue or be sued in court)
Inter parties against 3 rd parties General rule -effect of general rule, Exceptions -sequestration Separate estate, satisfaction -liability for debt Profession, trade, business
During joint estate after dissolution Nb Maharaj case
General rule If married in COP- need permission (written consent of spouse)
Exceptions Separate estate sued If a delict occurs - satisfaction In the matter of private trade and business practices
Common law exceptions Consent for divorce proceedings For a case involving children from a previous marriage If there is no consent the legal proceedings ARE not effected BUT the act does allow a court deciding an issue of proceedings lacking consent the costs awarded must come first from separate estate- then joint estate and a right of recourse will be available. Liability for debt (who can be sued) Differentiate debts outstanding when estate is in existence(for contractual debt spouses can be sued or spouse can be sued separately. Delictual debt- spouse can be sued separately ( s19 states attachment of assets) AND Debts outstanding after the dissolution of the marriage in COP Case of contractual debt- occurred- case of outstanding antinuptial debt- can be assumed spouse who incurred debt can be sued, if he is sued and pays full debt he should be able to claim half that amount from other spouse because they are co- debts Post nuptial contractual debts- must recover half from spouse who incurred the debt and half from the spouse who did not incur the debt. (they are divorced)
Maharaj case If debt arose during the course of the marriage, you can sue the spouse who incurred the debt as well as half from the other house.
In the case of household neccesaries you can sue one or both spouses. In case of delict- sue one spouse.
When does the accrual apply (s2) MPA 3 requirements
ANC non excluded Date odendaal v odendaal v odendaal 1-11-84 odendaal, terms express exclusion can be 2-12- 88 of ANC interpreted widely made orally as long as (try ascertain racial groups)
Accrual applicable- marriage out of COP without profit and loss.
Odendaal case- Agreed to keep assets separate Had to decide if agreement is sufficient , said oral agreement is sufficient. ->interpreted ANC for purpose of accrual Accrual system can be specifically excluded but is the default system for marriage out of COP Court concluded in you can orally excluded COP and profit and loss then accrual can also be excluded if expressly excluded. The odendaal case did however include accrual
Content of accrual (s3)
Difference between spouses/ 2
Claim by spouse with smaller or no accrual When? Reeder v Softline
Contingent vested
( authority for claim for accrual is a contingent right and And becomes vested upon dissolution of the marriage)
Calculation of accrual of respective estates
End value- commencement value = accrual
Net value at dissolution Net value at conclusion
Accrual determined before In ANC/ statement Testamentary dispositions Donation, mortis causa Deemed nil (liabilities assets not declared) & interstate succession
Excluded satisfaction S6 (3) prima facie or conclusive proof
Excluded inheritance / NB Olivier v Olivier (conclusive) Legacy/ donation Tomas v Tomas ( prima facie)
donations between spouses excluded Exclude assets except mortis causa
MB v NM Adjustment to CPI( must consider inflation and Convert It to current value)
Donations between spouses are not take into consideration when calculating accrual.(note amount is already taken out of donors estate) Mortis causa- donation that will only take effect at death of spouse- it is not deducted from either estate.
Olivier v Olivier Said commencement was nil At dissolution of marriage said accrual was more Court had to look at MPA Said value is s6(3) prima facie( can be rebutted) -> despite this provision ANC is a binding contract. Said if you agreed to the contract you are bound by it, only 3 rd parties can try disprove that.
Thomas v Thomas prima facie is authoritative court concluded s(6) 3 is not ambiguous and says value reflected in ANC is Prima Facie and says even if you a contracting party it can be disproven
MB b NB If common household no longer exists, when is end value determined from? End value must be determined at litis contestatio( point at which matters that have been disputed in court have been identified) Which means :the end value is determined ONLY at the time of litis contestatio
MPAs8 gives spouse remedy when other spouse deliberately disposes of assets Approach court to ask for immediate division of accrual Must prove: Interest in accrual has already been seriously jeopardised Interest in accrual will in future be seriously jeopardised Does not disadvantage another party
Spouse can claim for loss already suffered
Chapter 10- dissolution of marriage
Ways of dissolution
Death divorce Presumption of death Common law inquest
Requester Lowers His/her Initial Request, Making The Respondent More Likely To Agree To A Second Request. We Are Obligated To Concede To Someone Who Has Made A Concession To Us
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