Lecture 12 Flashcards
Marriage contracts
1) Contents of marriage contracts
2) Requirements
3) Marriage contracts of minors
4. Interpretation
5. Rectification
6.Termination of marriage contracts
What type of clauses can be
found in marriage contracts?
1) Any clause as long as it is not in conflict with
1.1) the law
1.2) good morals
1.3) the nature of a marriage
What type of clauses can be
found in marriage contracts?
1) Types of clauses commonly found in marriage contracts include:
1.1) Donations clauses
1.2) Succession clauses
1.3) Matrimonial property system
Donations clauses
1) Donations are permissible – s 22 of MPA
2) Including donations in marriage contract has certain advantages.
3) Donations can be made subject to suspensive conditions, resolutive conditions, and time clauses.
4) Example of resolutive condition: Cumming v Cumming
What must be done to
conclude a valid marriage
contract?
General requirements for conclusion of all contracts
(i) Parties must reach consensus
(ii) Parties must have capacity to act
(iii) Contract and performance must be lawful
(iv) Prescribed formalities, if there are any
(v) Possibility of performance
Distinction between different
types of marriage contracts
1) Antenuptial contracts
2) Postnuptial contracts
Which formalities must be
complied with in the case of an
antenuptial contract?
Formal requirements specified in Deeds Registries Act:
1) Attested by notary
2) Registered in deeds registry
3) Within 3 months after date of execution
What if the antenuptial
contract was concluded but
not registered?
1) Ex parte Spinazze
2) If antenuptial contract is not registered it is not
enforceable against third parties
3) But it is valid and binding between parties to the contract
Postnuptial contract to alter
matrimonial property system
(section 21 applications)
1) Joint application
2) Sound reasons
3) Creditors received sufficient notice
4) No other person prejudiced
Can spouses change their
property systems informally /
extra-judicially?
1) Honey v Honey
2) Must use procedure provided in sec 21.
3) Should parties attempt change in informal manner, the change is invalid.
4) Compare to the decision in Ex parte Spinazze
Interpretation of marriage contracts
1) Same interpretation rules as contracts in general.
2) Determine intention of the parties from words used in the contract
Rectification of marriage contracts
1) Rectification = correcting a mistake.
2) When contract does not reflect true
intention of the parties.
3) Bring application for rectification of
marriage contract (prove 3 things to
succeed)
Termination of marriage contracts
1)Does not totally lapse upon dissolution
2) Only terminates once all terms have
become irrelevant/fulfilled/terminated by a court
