CHAP 7: MARRIAGE OUT OF COMMUNITY OF PROPERTY

Question 1

THERE IS NO COMMUNITY OF PROPERTY WHEN

Answer 1

spouses enter into an ANC excl. community of property

spouses can agree on ANC before marriage & only enter into it after marriage through getting a post-nuptial contract to get into ANC accord to s21 of MPA

black SAn’s prior 2 Dec 1988

when husband’s domicile directs that the marriage is out of C.O.P

when a man doesn’t comply with s7(6) of the Recognition of Customary Marriages Act, all subsequent wives will be in no C.O.P

Question 2

GENERAL NATURE OF MARRIAGE W/O C.O.P

Answer 2

spouses become co-owners & not tied owners

spouses estates are separate & controlled separately

they can be in universal partnerships

each spouse has full capacity to act as they can enter into contracts separately & w/ each other

they aren’t liable for each other’s delictual debts & can claim delict against each other

each spouse can order sequestration on the other spouse

they’ve right of recourse should the other solely pay for household necessities

Question 3

ANC: NATURE & PURPOSE

Answer 3

the purpose of the ANC is to regulate patrimonial consequences of the marriage as spouses can incl. postnuptial donations, arrange succession, & set up trusts

Question 4

REQUIREMENTS FOR ANC: NOTARIAL EXEC & REGISTERATION [S87]

Answer 4

accord. to s87 of the Deeds Registries Act spouses must satisfy these for purposes of 3rd parties:

a notary must attest to the ANC as notarial execution

the spouses need to register with the registry within 3 months of agreement or accord. to court order

they must have agreed equally before marriage about the ANC

Question 5

REQUIREMENTS FOR ANC: NOTARIAL EXEC & REGISTERATION [S88]

Answer 5

this is applied to for in court after the conclusion of a marriage through postnuptial notarial & they should:

provide the court with good reasons why they omitted the fulfilment of the formal requirements

the application to court must be brought forward within reasonable time that they noticed the omission

the court will ensure that no creditor is prejudiced

Question 6

REQUIREMENTS OF ANC IN RECOGNISED CUSTOMARY MARRIAGES ACT

Answer 6

the husband applies to court to have the desired matrimonial system & doesn’t need to register with the deeds registry

if the first marriage is in C.O.P or accrual system, the court terminates that system & divides the property amongst spouses but will not apply it if it will prejudice any member in the marriage

Question 7

AMENDING ANC

Answer 7

spouses can informally cancel & amend ANC before getting married

spouses can alter their system through informal PNA for terms concerning only the two of them but cannot entirely change their system w/o court approval

spouses can cancel ANC & change their system by following s21 of MPA. The PNA must be registered with the Deeds Registries & it’s for purposes of accommodating the intentions the spouses had when they got married

Question 8

AMENDING ANC ACCORD TO COMMON LAW

Answer 8

accord to common law the High Courts do not amend the system but only for certain general circumstances but the Free State High Court only amends the trust related matters thus spouses need to follow s21 of MPA

if spouses want each other to be testamentary beneficiaries they need to do so through a joint valid will but cannot amend provisions in ANC.

if the benefit in testamentary is for the 3rd party, the provision in ANC can be amended by executing a joint will

Question 9

TERMIANTION OF ANC

Answer 9

dissolution of marriage, despite divorce, death & separation does not dissolve ANC, these are the requirements:

• all its terms have been fulfilled
• the terms are irrelevant & impossible
• a court order has been granted to terminate it

Question 10

CONTENTS OF ANC :GENERAL RULE

Answer 10

spouses are allowed to incl anything they deem necessary & achievable in ANC but not the impossible, illegal & immoral
the ANC should contain all invariable consequences of marriage

spouses can incl:
clauses regulating the system, succession, benefits & donations & provisions for household expenses

Question 11

MATRIMONIAL PROPERTY SYSTEM CLAUSE

Answer 11

this usually ensures that no joint estate is formed

spouses can choose to either include or exclude the accrual system & are allowed to alter it however it fits them

Question 12

SUCCESSION CLAUSE

Answer 12

this is for purposes of death
spouses can nominate each other to either be sole beneficiaries or just benefit the usufructuary rights from the property of the deceased
spouses are nor allowed to amend this unilaterally but can through a joint will

Question 13

DONATIONS CLAUSE

Answer 13

spouses are now allowed to donate to each other & can add a 3rd party in the ANC

the donation can be reverted to the donor should it expire or should they divorce, which can be chosen by the spouses as this clause can be amended & cancelled through agreement

Question 14

HOUSEHOLD EXPENSES CLAUSE

Answer 14

spouses are both responsible to contribute equally towards the expenditures accord to s23 of the MPA

there is n auto right of recourse for spouses married out C.O.P after the commencement of the ACT

spouses can individually agree to recourse each other in the ANC or informally after marriage

Question 15

ANC ENTERED BY MINORS

Answer 15

minors need both consent to marry & sign ANC from whoever was appointed or available to consent for each

if there was consent to marry but not contract, such contract will be rendered as void & will have to apply to court accord to s21 of MPA to alter their system

if there was no consent for either the contract & marriage, the accrual system applied to it will be valid & enforceable

Question 16

BACKGROUND OF THE ACCRUAL SYSTEM

Answer 16

prior 1 November 1984 the accrual system was not automatic but now is & spouses married after 1984 can incl the exclusion of accrual system in their ANC
this is influenced by the MPA
spouses are now afforded the chance to decide which assets may be calculated or not in the ANC

Question 17

LEGAL NATURE OF THE ACCRUAL SYSTEM

Answer 17

the system only comes into operation at the dissolution of marriage. Thus, spouses only have contigent rights, meaning no right to the estate & claims only come into effect after the dissolution of the marriage

Question 18

ACCRUAL DEFINITION ACCORD TO S4(1) OF MPA

Answer 18

accrual of a spouse is the amount which the net value of his/her estate at the time of the dissolution of marriage exceeds the net value of the estate at the time of the conclusion of marriage

Question 19

HOW TO CALCULATE THE ACCRUAL

Answer 19

determine the net commencement of both estates, the net final values of both estates, accrual of each spouse’s estate & calculate the accrual claim

Question 20

DETERMINING THE NET COMMENCEMENT VALUES OF ESTATES

Answer 20

the spouses declare the net commencement values of their estates in the ANC

they may declare values before marriage in a separate estate or within six months of marriage

if spouses do not declare in ANC nor statement, it will be rebuttably presumed that the net commencement was nil

if debts exceed assets it will be a negative net commencement value & will be deemed as nil

Question 21

CALCULATION OF THE ADJUSTED COMMENCEMENT VALUE

Answer 21

inflation is taken into consideration when calculating the value of the assets

FORMULAR:
CONSUMER PRICE INDEX OF WHEN THE MARRIAGE DISSOLVED / CPI OF THE MONTH OF THE WEDDING x COMMENCEMENT VALUE

but spouses can agree on excl CPI & apply it to only certain assets

Question 22

DETERMINING THE NET FINAL VALUES OF THE ESTATES

Answer 22

the calculation excludes all unpaid debts & include all amounts still due on the estate accord to s4 of MPA

these assets are excluded from calculation:
amount of damages such as non-patrimonial losses

inheritance, donations & legacy

assets that spouses agreed on excluding in the ANC

inter vivos donations that spouses made to each other while still alive

Question 23

DETERMINING THE ACCRUAL OF ESTATES

Answer 23

the spouses estate are calculated by subtracting the net commencement value from the net final value

the accrual is calculated before giving effect to any inheritance or donations in contemplation of death

Question 24

CALCULATION OF THE ACCRUAL CLAIM

Answer 24

after the calculation of the accrual in each spouse’s estate, it is determined which estate has smaller accrual

the spouse with the smaller accrual has a claim against the other spouse or their estate for half the difference between the accrual of respective estates

Question 25

THE SATISFACTION OF THE CLAIM

Answer 25

the right to claim the accrual is known as a patrimonial benefits

the claim can be forfeited by court as in s9 of MPA & s9 of Divorce Act

s10 of MPA stipulates that a spouse liable under accrual can apply to court for the deferment of the satisfaction of the claim

Question 26

PROTECTION OF THE SPOUSE’S RIGHT TO SHARE IN THE ACCRUAL

Answer 26

accord to s1 of MPA a spouse may apply to court for an immediate division of the accrual in accordance with principles of the accrual system

the spouse must prove:

• he/she is being prejudiced by the conduct of the spouse to have a right to share in the accrual at dissolution of marriage
• that the intended conduct of the other spouse will seriously prejudice the applicant’s right to share in the accrual
• that the applicant will not prejudice others

the court will dissolve the estate in 30/70 instead of 50/50

Question 27

PROTECTION OF THE SPOUSE’S RIGHT TO SHARE IN THE ACCRUAL

Answer 27

a spouse that suspects prejudice accord to actions of the other spouse may institute a claim in High Court to have the estate divided if he/she can prove prejudice, potential prejudice & none prejudice on other parties

Question 28

COMMON LAW PROTECTION OF THE SPOUSE

Answer 28

the spouse may use actio Pauliana utilis to protect their right to share in the accrual