Lecture 14 Flashcards
Consequences of dissolution
1) Divorce
2) Death
Change in status
Status changes to unmarried
✓ Wife can take husband’s surname
*May retain surname
✓ Minor regarded as a major
*Retains majority
✓ Impediments based on affinity are created
*Impediments due to relationship by affinity remain
✓ Can inherit intestate
*Can no longer inherit intestate
Constitutionality of s 2B of Wills Act
JW v Williams Ashman NO and Others 2020
the provision disinherits the former spouse and results in their
inheritance devolving by way of intestate succession
S 25(1) of the Constitution provides that no one may be deprived
of property except in terms of a law of general application, and
no law may permit the arbitrary deprivation of property
Reasons why s 2B was NOT declared unconstitional:
1) Most people who get divorced today still do not realize that unless they revoke a prior will which favors their spouse it will have to be given effect to.
2) More people are opting to do their own divorces and to settle
their differences by way of their own negotiated settlements,
without legal assistance.
3) Purpose of provision to prevent former spouse from benefitting unfairly in addition to previous settlement/divorce order.
Effect of divorce on patrimony of the spouses
General rule:
Estates are divided according to the property system applicable to the marriage.
Deviation from general rule: Settlement agreement
1) Spouses may agree on any division of their assets they see fit.
2) Section 7(1) of the Divorce Act provides court with ultimate
discretion to make an order in accordance with the settlement agreement.
Settlement agreements
1) Incorporated
2) Unincorporated
Main advantages of incorporation:
1) Additional force of an order of court.
2) Immediate enforcement by way of e.g. execution against
property and contempt of court order.
No settlement agreement:
General rule
1) Estates are divided according to the
property system applicable to the marriage
2) This ordinary division can be affected by certain court orders which a court has the discretion to make upon application
Pension interest vs pension benefit
If a spouse had already retired and received the pension at date of
divorce, pension qualifies as a pension benefit and not a pension interest
Pension Funds Act:
The pension fund is deemed to accrue on the date of the court order and the non-member can choose the have the amount directly transferred to him/her or to have it transferred to an approved pension fund.
Can the non-member spouse claim a portion of other party’s pension even after the divorce was finalized?
1) GN v JN 2017 (1) SA 342 (SCA)
2) Non-member still able to claim a portion of pension interest after divorce provided division has not been finalized
