Chapter 5 - Marriage out of community of property

Question 1

The anc

Answer 1

the purpose of an anc is to exclude all or some of the common-law and statutory consequences of marriage, in particular, those relating to matrimonial property. An and must be entered before marriage

Question 2

Postnuptial execution and registration of an antenuptial contract

Answer 2

1. Parties must definitely have agreed on the terms of the contract before entering into marriage.
2. The parties must give good reasons for their failure properly to execute and/or register the contract before the marriage.
3. The application must be made within a reasonable time after it was discovered that the agreement was not properly executed and/or registered.

Question 3

Additional requirements which apply to the anc of a minor

Answer 3

A minor who enters into an ance must personally sign the contract.

Question 4

The contents of an anc

Answer 4

1. The matrimonial property system
2. A right of recourse in respect of household necessaries
3. Succession
4. Marriage settlement

Question 5

Interpretation of an anc

Answer 5

An anc contract is interpreted in exactly the same way as any contract

Question 6

Cancellation and amendment of an anc

Answer 6

the parties may cancel or amend their and right up until the wedding. However, once the wedding has taken place the parties cannot, as a general rule, cancel or amend the anc

Question 7

Termination of an anc

Answer 7

An anc does not lapse on dissolution of the spouse’s marriage

Question 8

Marriage out of COP and community of profit and loss without the accrual system

Answer 8

it is called the complete separation of property .

Question 9

Marriage out of COP with retention of community of profit and loss

Answer 9

Here each spouse retains the assets he or she owns at the time of the wedding and remains separately liable for his or her antenuptial debts. However, all profit and loss arising during the marriage become joint profit and loss and constitute a joint estate of which each spouse owns an undivided half-share

Question 10

Marriages to which the accrual system applies

Answer 10

The accrual system applies to all marriages that are concluded out of community of property and community of profit and loss after the coming into operation of the Act, except in so far as the system is expressly excluded in the couple’s anc.

Question 11

The accrual claim formula

Answer 11

AC = 1/2 x (Larger Accrual - Smaller Accrual)

Question 12

The accrual claim example

Answer 12

Suppose the accrual of Dave’s estate on the dissolution of the marriage is R50 000 while the accrual of Jane’s estate is R10 000. The difference between the accrual is R40 000. Jane then gets a claim for equal to half the difference, namely R20 000.

AC = 1/2 x (R50 000 - R10 000) = 1/2 x R40 000 = R20 000

Question 13

The difference between accrual sharing and sharing of assets

Answer 13

It is important to note that the accrual system does not give the spouse rights in respect of each other’s property or entitles the spouse whose estate shows the smaller or no accrual to a transfer of assets by the other spouse.

Question 14

Calculating the accrual

Answer 14

Mr and Mrs Jones married in May 1987 and divorced in February 2014. Mr Jones had no assets at the time of marriage, while Mrs Jones’ estate was R10 000. According to the historical CPI table the following are the relevant index percentages:

May 1987: 14%
February 2014: 107.3%

Therefore, CPI = Current CPI / Previous CPI = 107.3 / 14 = 7.6642857

Therefore Mrs Jones Estate = R10 000 x 7.6642857 = R76 642.86 (adapted commencement value)

Question 15

Assets which do not form part of the accrual system

Answer 15

1. Any non-patrimonial damages the spouse receives during marriage
2. Assets the spouses exclude in their and
3. An inheritance, legacy or donation one of the spouses received from a third party
4. Donations inter vivos

Question 16

The date on which the value of the spouse’s estate is to be calculated for the purpose of accrual sharing

Answer 16

If a marriage that is subject to the accrual is dissolved by death, the accrual of the deceased spouse’s estate is determined before the effect is given to any inheritances or donations.

Question 17

Protection of a spouse’s right to share in the accrual

Answer 17

Since it is obvious that spouses who are married subject to the accrual system have an interest in each other’s estate during the marriage, the legislator has created a mechanism to protect this interest