CHAP 6: MARRIAGE IN COMMUNITY OF PROPERTY

Question 1

BLACK MARRIAGES PRIOR 2 DECEMBER 1988

Answer 1

black spouses were not permitted to enter into marriage IN community of property but the Marriage & Matrimonial Property Law Amendment Act altered that decision & blacks have a choice of system to choose from

Question 2

NATURE OF MARRIAGE IN OF C.O.P

Answer 2

the spouses have joint estate, the half share is indivisible & undivided, no spouse has exclusive rights, there’s tight co-ownership of assets & spouses cannot donate, sell or burden one part of the shares alone.

Question 3

RULES TO JOINT ESTATES

Answer 3

all assets & debts accumulated before & after the conclusion of marriage are part of the joint estate

Question 4

RULES OF JOINT ESTATE: IMMOVABLE PROPERTY

Answer 4

for immovable property, accord to section 17 of Deed Registry Act, spouses need to bring a title deed that reflects that the property forms part of the estate & it must be registered under both spouses

separate estates will also form part of the joint estate accord to creditors benefits

Question 5

ASSETS EXCL FROM JOINT ESTATE: SPECIFICATIONS IN ANC

Answer 5

separate estates form part of the joint estate unless stated otherwise in the ANC
monetary value or replacement of asset bought with estate income falls under separate estate

Question 6

ASSETS EXCL FROM THE JOINT ESTATE: EXCL IN WILL OR DONATION

Answer 6

the donor can claim that the donation should be excluded from the joint estate
e.g an inheritance with a clause stating to exclude the inheritance from joint estate

Question 7

ASSETS EXCL FROM JOINT ESTATE: FIDEICOMMISSIUM OR USUFRUCT

Answer 7

in fideicommissium the estate gets passed on from generation to generation - cannot be used in joint estate

in usufruct it refers that a person can enjoy the fruits & leisure but not inherit the estate- only the income from this form part of the joint estate

Question 8

ASSETS EXCL FROM JOINT ESTATE: PERSONAL ASSETS OF CUSTOMARY WIFE

Answer 8

the assets are distinguished accord to categories therefore the wife only has rights on her own assets

Question 9

ASSETS EXCL FROM JOINT ESTATE: SMALL ENGAGEMENT GIFTS

Answer 9

accord to common law such gifts don’t form part of the joint estate

Question 10

ASSETS EXCL FROM JOINT ESTATE: FRIENDLY SOCIETIES ACT

Answer 10

this refers to societies that benefit the woman only & the male spouse has no possible benefit & claim over this asset

Question 11

ASSETS EXCL FROM JOINT ESTATE: COSTS OF MATRIMONIAL LITIGATION

Answer 11

costs of litigation b/w spouses are paid by the other guilty party with his/her separate estates, if the separate estate cannot cover this then the joint estate pays but can recover at dissolution of marriage

Question 12

ASSETS EXLC FROM JOINT ESTATE: NON-PATRIMONIAL COMPENSATION

Answer 12

delict damages are paid for from the guilty spouses’ estate accord to s18 of the MPA?

Question 13

ASSETS EXCL FROM JOINT ESTATE: PATRIMONIAL COMPENSATION

Answer 13

injuries inflicted by spouses on each other can be claimed & will be paid for from separate estates

Question 14

ASSETS EXCL FROM JOINT ESTATE: PREVENTION OF ORGANIZED CRIME ACT

Answer 14

estates of both & joined estates will be seized if found that one spouse was involved in organized crime

Question 15

LIABILITIES OF JOINT ESTATE: GENERAL RULE

Answer 15

all assets & debts incurred before & after conclusion of marriage are part of the joint estate unless stated otherwise in ANC or PNA

Question 16

LIABILITIES OF JOINT ESTATE: ANC

Answer 16

ANC debts form part of joint estate w/o exception

these incl contractual, delict & ANC maintenance towards kids before conclusion of marriage

Question 17

LIABILITIES OF JOINT ESTATE: PNA

Answer 17

if the other spouse entered into a valid contract before marriage then it will be paid for from the joint estate

the joint estate will be bound only if both parties have consented the creditor can claim satisfaction from either joint or separate estate of the indebted & not the other spouse

Question 18

LIABILITIES OF JOINT ESTATE: DELICTUAL DEBTS

Answer 18

compensation is claimed from the wrongful spouse , but can be claimed from joint estate if separate estate cannot cover all
at dissolution of marriage, the innocent spouse will be justly enriched

Question 19

CASE LAW: VAN DE MERWE V RAF 2006

Answer 19

wife sued RAF for bodily injuries when the husband intentionally ran over her multiple times and were married in C.O.P but later on divorced

she wanted to hold RAF liable for bodily injuries

the wife was only entitled to non-patrimonial damages accord to s18 of MPA but she argued the ruling as discriminatory as other spouses could claim patrimonial damages

the C.C then amended sec18(b) & allowed spouses in C.O.P to claim for patrimonial & non-patrimonial damages

these claims are exhausted from separate estate, but if it’s small they dip in the joint estate then justly enrich the innocent spouse at dissolution

Question 20

POSITION OF THE 3RD PARTIES IN C.O.P

Answer 20

the creditors are eligible to claim from the joint estate & the separate estate

innocent spouse can recourse upon dissolution

creditors cannot claim from the innocent spouses’ estate

Question 21

LIABILITY ATTAINED FROM JOINT ESTATE

Answer 21

the creditor will claim from joint & both separate estates of the spouses, esp in insolvency

Question 22

MANAGEMENT OF JOINT ESTATE: GENERAL PRINCIPLE

Answer 22

accord to s11 of MPA, both genders can manage the estate

s6 of Customary Marriages states that wives also have equal control of the assets

Question 23

MANAGEMENT OF JOINT ESTATE: NO CONSENT NEEDED

Answer 23

in stock exchange transactions

bank deposit transactions in owner’s name

contract as part of ordinary course of separate business

donations to 3rd parties that don’t subject the other to prejudice

Question 24

MANAGEMENT OF JOINT ESTATE: CONSENT NEEDED [INFORMAL]

Answer 24

the consent could be granted orally, tacitly or when ratified

this is usually for household effects or furniture

if spouse receives money on behalf of the other

if it’s donations that won’t prejudice the other party

Question 25

MANAGEMENT OF JOINT ESTATE: CONSENT NEEDED [WRITTEN CONSENT]

Answer 25

may be performed after the consent is granted

needed when the other spouse stands in for the other at financial institutions

when alienating, burdening or ceding investments of joint estate

when one spouse withdraws money from other spouse’s account

Question 26

MANAGEMENT OF JOINT ESTATE: CONSENT NEEDED [WRITTEN CONTESTED CONSENT]

Answer 26

the performance can only happen after granting this & it can’t be given in advance

there needs to be two competent witness at the scene

this is needed for purposes of actual alienation, burdening immovable property & granting of real rights of immovable property of joint estate

when entering surety, receive credit & purchasing immovable property

Question 27

PROTECTION OF THE 3RD PARTY

Answer 27

this happens when the creditor didn’t know of lack of consent so the courts make the contract valid & on ad hoc basis but if the 3rd party was negligent no remedy will be applied

the 3rd party may apply rei vindicatio or unjustified enrichment remedy if the assets has enriched the joint estate

Question 28

PROTECTION OF SPOUSES AGAINST EACH OTHER

Answer 28

accord to s15(9) of MPA, upon dissolution the rightful spouse can claim recourse, half of damages & equal division of remains

if the spouse believes her share in the joint estate is endangered he/she may get a court order to remove spousal capacity to contact

accord to s20 of MPA spouses can apply for change of matrimonial system

Question 29

CAPACITY OF SPOUSES TO LITIGATE: LIMITED CAPACITY

Answer 29

spouses cannot institute or defend legal proceedings w/o written consent of spouse accord to s17 of MPA

these incl 1) proceedings pertaining separate estate of spouse

2) claiming non-patrimonial damages for delict against spouse
3) matters pertaining profession, trade or business of the spouse

Question 30

CAPACITY OF SPOUSES TO LITIGATE: INSOLVENCY

Answer 30

accord to s17(4) of MPA applicants must bring application for sequestration of joint estate

applicant must satisfy a court with facts that they can’t establish the system of marriage of the client