CHAP 6: MARRIAGE IN COMMUNITY OF PROPERTY Flashcards
BLACK MARRIAGES PRIOR 2 DECEMBER 1988
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
NATURE OF MARRIAGE IN OF C.O.P
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.
RULES TO JOINT ESTATES
all assets & debts accumulated before & after the conclusion of marriage are part of the joint estate
RULES OF JOINT ESTATE: IMMOVABLE PROPERTY
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
ASSETS EXCL FROM JOINT ESTATE: SPECIFICATIONS IN ANC
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
ASSETS EXCL FROM THE JOINT ESTATE: EXCL IN WILL OR DONATION
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
ASSETS EXCL FROM JOINT ESTATE: FIDEICOMMISSIUM OR USUFRUCT
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
ASSETS EXCL FROM JOINT ESTATE: PERSONAL ASSETS OF CUSTOMARY WIFE
the assets are distinguished accord to categories therefore the wife only has rights on her own assets
ASSETS EXCL FROM JOINT ESTATE: SMALL ENGAGEMENT GIFTS
accord to common law such gifts don’t form part of the joint estate
ASSETS EXCL FROM JOINT ESTATE: FRIENDLY SOCIETIES ACT
this refers to societies that benefit the woman only & the male spouse has no possible benefit & claim over this asset
ASSETS EXCL FROM JOINT ESTATE: COSTS OF MATRIMONIAL LITIGATION
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
ASSETS EXLC FROM JOINT ESTATE: NON-PATRIMONIAL COMPENSATION
delict damages are paid for from the guilty spouses’ estate accord to s18 of the MPA?
ASSETS EXCL FROM JOINT ESTATE: PATRIMONIAL COMPENSATION
injuries inflicted by spouses on each other can be claimed & will be paid for from separate estates
ASSETS EXCL FROM JOINT ESTATE: PREVENTION OF ORGANIZED CRIME ACT
estates of both & joined estates will be seized if found that one spouse was involved in organized crime
LIABILITIES OF JOINT ESTATE: GENERAL RULE
all assets & debts incurred before & after conclusion of marriage are part of the joint estate unless stated otherwise in ANC or PNA
LIABILITIES OF JOINT ESTATE: ANC
ANC debts form part of joint estate w/o exception
these incl contractual, delict & ANC maintenance towards kids before conclusion of marriage
LIABILITIES OF JOINT ESTATE: PNA
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
LIABILITIES OF JOINT ESTATE: DELICTUAL DEBTS
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
CASE LAW: VAN DE MERWE V RAF 2006
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
POSITION OF THE 3RD PARTIES IN C.O.P
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
LIABILITY ATTAINED FROM JOINT ESTATE
the creditor will claim from joint & both separate estates of the spouses, esp in insolvency
MANAGEMENT OF JOINT ESTATE: GENERAL PRINCIPLE
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
MANAGEMENT OF JOINT ESTATE: NO CONSENT NEEDED
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
MANAGEMENT OF JOINT ESTATE: CONSENT NEEDED [INFORMAL]
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
MANAGEMENT OF JOINT ESTATE: CONSENT NEEDED [WRITTEN CONSENT]
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
MANAGEMENT OF JOINT ESTATE: CONSENT NEEDED [WRITTEN CONTESTED CONSENT]
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
PROTECTION OF THE 3RD PARTY
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
PROTECTION OF SPOUSES AGAINST EACH OTHER
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
CAPACITY OF SPOUSES TO LITIGATE: LIMITED CAPACITY
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
CAPACITY OF SPOUSES TO LITIGATE: INSOLVENCY
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
