Module 6

Question 1

What sets of rules govern matrimonial property systems?

Answer 1

Matrimonial property systems are sets of rules which govern:
- Which assets belong to which party
- Who is responsible for debts
- Who controls the liabilities and assets during the marriage

Question 2

What does martial property mean?

Answer 2

Marital property means property owned by people who are married to each other.

Question 3

Which act govern the matrimonial system?

Answer 3

The matrimonial property system are regulated by the matrimonial property act (MPA)

Question 4

How are the matrimonial property systems are entered into?

Answer 4

The matrimonial property systems are entered into by antenuptial contracts where they can choose any system as long as it is not contra bonos mores.

Question 5

What are the three matrimonial property systems?

Answer 5

The three main matrimonial property systems are:
- In community of property which is automatically entered into if there is no ANC
- Out of community of property without the accrual system. Ownership of all the property is separate
- Out of community of property with the accrual system. The spouses share gains made during the marriage

Question 6

What is the default matrimonial system?

Answer 6

In community of property is a default if there is no antenuptial agreement or if the husband is domiciled in another country where the default system is different

Question 7

What is in community of property in joint estate?

Answer 7

The default matrimony system is marriage in a community of property, in joint estate. The spouses shares are indivisible and the spouses are tied co-owners, regardless of their contributions. All the money the couple makes during the marriage and all they acquire falls into the joint estate. In community of property at the end of the marriage each spouse gets half of the joint estate.

Question 8

What issues should you look at when dealing with in community of property systems?

Answer 8

• What falls into the separate estate
• How do spouses manage the joint estate

Question 9

What does the joint estate contain?

Answer 9

The joint estate contains all assets (things which have financial value) and liabilities (debts) which both the spouses have at the time of the marriage and acquire during the marriage

Question 10

When can assets and liabilities be excluded from in community of property?

Answer 10

Assets and liabilities can be excluded from the joint estate in community of property if the spouses sign an ANC

Question 11

What is the common law principle of where separate property replaces separate property?

Answer 11

Separate property owned by only one of the spouses when the couple is married in community of property, the principle pertium succesit in locum rei and res succedit in locum pretii applies to this separate property.

Question 12

When are assets excluded from the joint estate?

Answer 12

• When assets are excluded by antenuptial contract - they are still married in community of property because their antenuptial contract does not exclude the default marital property regime
• Assets excluded in a will or deed of donation - Exclusion clauses in a will can apply to existing marriages or to future marriages
• Delictual damages from third parties for non-patrimonial loss
• Delictual damage compensating for bodily harm and injury inflicted by the other spouse

Question 13

What assets are excluded in Mazibuko v Nation Director of public Prosecutions case?

Answer 13

In Mazibuko v Nation Director of public Prosecutions the court held that some property in joint estate should be rescued from forfeiture under the Prevention of Organised Crime Act and that this property would become the separate property of the innocent spouse

Question 14

What is the main rule of delicts when married in community of property?

Answer 14

The rules of delictual in community of property is that one spouse is not liable for the delictual damages.

Question 15

What does section 19 of the MPA state?

Answer 15

According to section 19 of the MPA if a spouse is liable for the payment of damages by reason of a delict committed by them, such damages are recoverable from their separate property. If they have no separate property or it is insufficient then it is recoverable from the joint estate, and an adjustment shall be affected in favour of the other spouse when the joint estate is divided.

Question 16

What is the aim of the delictual adjustment?

Answer 16

The aim of this adjustment is to ensure that the innocent spouse does not end up paying half the delictual damages and that they are put in the same position as they would have been before.

Question 17

What does section 18(a) of the MPA state?

Answer 17

Section 18(a) of the MPA states that when a third party pays an individual married in community of property, delictual damages for non-patrimonial loss do not fall into the joint estate but become that spouses separate property. However, damages awarded for patrimonial harm will fall into the joint estate

Question 18

Can spouses married in community of property sue each other in delict?

Answer 18

In common law, spouses married in community of property could never sue each other in delict, this was seen in the Tomlin v London case which stated that delictual actions between spouses were futile as anything that one spouse recovers from the other comes from a joint estate and fall back into it instantly. However, in 1984 the MPA changed the common law rule according to section 18(b), this meant delictual damages were no longer futile.

Question 19

What does section 18(b) of the MPA state?

Answer 19

Section 18(b) of the MPA states that when a spouse is married in community of property they may recover delictual damages that result from bodily injury inflicted by their spouse and these don’t fall into the estate, but become separate property.

Question 20

What was the outcome of Van der Merwe v RAF?

Answer 20

The spouse can now sue their spouse for both patrimonial and non-patrimonial damages, due to the CC decision in the case Van der Merwe v RAF.

Question 21

What are two dates the MPA applies to African and non-African marriages marriages?

Answer 21

The matrimonial property regime which applies to a particular marriage is determined by the Matrimonial Property Act (MPA). This Act was applied to non-African (coloured, Indian and white) civil marriages in 1984, but only applied to African civil marriages from
1988.

Question 22

How were African and non-African marriages governed before the MPA?

Answer 22

Before the application of the MPA, different matrimonial property regimes applied to
African and non-African civil marriages. African marriages without an ANC were out of community of property, while non-African marriages without an ANC were in community of property.

Question 23

What was determined in the Sithole v Sithole case?

Answer 23

In the Sithole v Sithole 2021 case the CC declared the provision in the MPA that stated that only African marriages after 1988 were civil marriages was unconstitutional. This case stated that the provision in the MPA was discriminatory. Now all marriages are automatically in community of property unless the spouses choose otherwise through an antenuptial agreement.

Question 24

What was the matrimonial power and how was it excluded?

Answer 24

The material power was a common law rule which limited the legal capacity of wives; they needed their husbands permissions and assistance to conclude legal transactions. A husband could do anything they liked with the joint property, the single exception is that he can’t deliberately defraud his wife of her share of the property. Women were treated as minors except for contracts to acquire household goods. This rule could be excluded through an antenuptial agreement.

Question 25

How was the matrimonial power removed?

Answer 25

The material power rule was removed by the MPA in 1984 by section 11 of the act.

Question 26

What does section 15 of the MPA regulate?

Answer 26

Section 15 of the MPA regulates the administration of the joint estate for couples married in community of property

Question 27

What sections of the MPA give spouses equal power and their expectations to this?

Answer 27

Section 14 and 15(1) of MPA states that spouses have equal power to administer the joint estate; both spouses may perform a juristic act without consent except for activities in section 15(2) and 15(3).

Question 28

What is needed for spouses to perform acts in section 15(2)?

Answer 28

For activities in section 15(2) spouses need written consent that sometimes have to be written in a formal way witnessed by two competent witnesses and consent must be given for every transaction separately. The consent must be given before the time.

Question 29

What are the activities listed in section 15(2)?

Answer 29

Activities listed in section 15(2) include:
- Alienation (pass ownership) or mortgage of any immovable party
- Signing surety for another person’s debts
- Alienation (pass ownership) of shares or insurance policies
- Sale of physical thing that are held as investments
- Acquisition of expensive item on credit

Question 30

What is needed for spouses to perform acts in section 15(3)?

Answer 30

For activities in section 15(3) spouses consent is required in a more informal way and dont need to be in writing and can be given after the transaction by way of ratification provided that is done within a reasonable time.

Question 31

What activities are listed in section 15(3)?

Answer 31

Activities listed in section 15(3):
- Selling or giving away household furniture
- When they deal with money coming from the joint estate
- Donation of assets from joint estate
- Income from the other spouse’s separate property
- Receiving money due to other spouses

Question 32

What does section 15(8) of the MPA state?

Answer 32

Section 15(8) lists factors which the court should consider when determining whether a donation is prejudicial. These include the value of donation, the reason for the donation, the financial and social standing, standard of living of the spouses and the court deems relevant.

Question 33

What is stated in the Visser v Hull case?

Answer 33

In the Visser v Hull case Mr Visser sold the family home to his cousins. The house was worth R98 000 but the sale price was only R10 500, the court decided that this was really a donation. The court found that a donation of this value was prejudicial to Mrs Visser interests in the joint estate and that donation fell within the scope of section 15(8) and therefore according to section 15(3) requires consent.

Question 34

What is stated in the Distillers Corporation LTD v Modise case?

Answer 34

In Distillers Corporation LTD v Modise, Mr Modise stood surety for the debts of a liquor store. Mr Modise was a farmer so standing surety for a liquor store was not part of his ordinary business and did not fall in section 15(6) as he was married in community of property. The court held that Mrs Modise’s consent was needed but the company was a bona fide third party, as it acted reasonably. Mr Modise had to pay the liquor store’s debts.

Question 35

What does section 15(6) of the MPA state?

Answer 35

Section 15(6) provides that if spouses perform particular section 15(2) activities in the course of their profession, trade or business, they do not require consent. This doesn’t apply to section 15(3) activities

Question 36

What is stated in the ABSA v De Goede en ‘n Ander case?

Answer 36

In the ABSA v De Goede en ‘n Ander case two married men stood surety for debts of a close corporation. When the corporation was unable to pay its debts, ABSA sued the men for the money owed. As Mr de Goede was a school teacher and Mr Eager a clerk in the SA air force and a business providing passenger service had nothing to do with either means ordinary work or business, however they were acting in ordinary work of their side business when they stood surety. The courts held that the protection offered to non-consenting spouses in terms of section 15(2) and (3) was not absolute.

Question 37

When is a contract not binding on the spouses and therefore cant be ratified?

Answer 37

A contract will not be binding on the spouses, cease spousal consent is required in terms of section 15(2)(h). Without this consent, a spouse does not have the legal capacity to stand surety and therefore cannot be ratified later

Question 38

What is Rei vindicatio remedy of Non-consenting spouse?

Answer 38

Rei vindicatio - a spouse does not have the legal capacity to transfer ownership in certain kinds of things without spousal consent and therefore the spouses still own them

Question 39

What is the enrichment remedy of Non-consenting spouse?

Answer 39

Enrichment remedies - if a spouse makes a prejudicial donation of money, the person who receives the money will become the owner trough commixtio (mixing) the specific remedy that can be used in this situation is the condictio sine causa specialis (transfers made without legal ground). It is limited to the amount by which the third party remains enriched on the day action is instituted.

Question 40

What is the Delictual remedies of Non-consenting spouse?

Answer 40

Delictual remedies - in the case of fraudulent donations, the non-consenting spouse might be able to bring a delictual action against the person who received the donation if the receiver was involved in the fraud. Condicitoio ex causa furtiva which functions as a delictual remedy for theft. Allows the non-consenting spouse to sue for the full amount.

Question 41

What is the actio Pauliana utilis of non-consenting remedies?

Answer 41

The actio Pauliana utilis - at common law, the actio Paulina was available to a wife whose husband had donated property from the joint estate in deliberate fraud of her interests in the property. Spouses can use the remedy to recover the fraudulent donation.

Question 42

What does section 15(9)(a) of the MPA state?

Answer 42

Section 15(9)(a) of the MPA states when a spouse enters into a transaction that violates section 15(2) or 15(3) and the third party doesn’t know and cannot reasonably know that the transaction violated theses sections then the transactions is deemed to have been entered into with the required consent.

Question 43

How dose section 15(9)(a) protect third parties?

Answer 43

Section 15(9)(a) protects bona fide legal parties. Third parties have a legal duty make inquiries as to whether or not spousal consent is required for a transaction, that they deemed negligent if they fail to investigate adequately and may consequently forfeit section 15(9)(a) protection.

Question 44

What does section 15(9)(b) state?

Answer 44

Section 15(9)(b) is only available if the estate is divided and it doesn’t always provide full compensation for the loss suffered by non-consenting spouses.

Question 45

What does the Marais v Maposa case state?

Answer 45

In Marais v Maposa case H had a long standing extra-marital relationship with another woman, Ms Maposa and without telling his wife H donated 75% of the shares of his business to Ms Maposa. He died and His wife found out about the donation. Mrs Maposa was aware that H was married and didn’t ask which system he was married under or if he obtained his wife’s consent. The court declared that the transaction was not upheld as the third party was not bona fide

Question 46

What are the requirements for common law adjustment of spouses married in community of propety?

Answer 46

The requirements for the common law adjustment are that one spouse disposed of assets from the joint estate in a deliberate attempt to defraud the other spouse of their interest in the joint property

Question 47

What is stated in the Bopape v Moloto case?

Answer 47

In the Bopape v Moloto case Mr Bopape gave his girlfriend R200 000 to build a house, this donation violated section 15(3)(c). Mr and Mrs Bopape sued Ms Moloto for return of the money. It was held that a non-consenting spouse is not limited to section 15(9)(b) remedy. The spouses can recover the donation directly from the third party.

Question 48

What does section 16 of the MP state?

Answer 48

Section 16 of MPA provides that where a spouse refuses to consent to section 15 transactions the court may give the other spouse permission to perform the section 15 transactions without spousal consent. Only if it is satisfied that the non-consenting spouse is behaving unreasonably and that there is a good reason for dispensing with the consent requirement.

Question 49

What does section 17 of the MPA state?

Answer 49

The capacity to litigate of both spouses is now limited in terms of section 17. Spouses married in a community of property require written consent of the other spouse before they can bring or defend a court case.

Question 50

What are the exceptions to section 17 of the MPA?

Answer 50

There are three situation where the spouses do not require spousal consent to litigate:
- In respect of separate property
- When suing for non-patrimonial delictual damages
- In respect of matters relating to their business, trade or profession

Question 51

What does section 20 of the MPA state?

Answer 51

According to section 20 of the MPA if one of the spouses believe that their interests in joint estate have been seriously prejudiced by the actions of the other spouse, they can apply to the court for an immediate division of the joint estate.

Question 52

When will the court order the immediate division of assets?

Answer 52

The court will order this immediate division if it is satisfied that:
- The interests of the applicant spouse in the joint estate are being or will be seriously prejudiced because of the actions of the other spouse
- No third party will be prejudiced as a result of the immediate division of the joint estate

Question 53

What do parties need to do to change their patrimonial system?

Answer 53

To change the Matrimonial property system according to section 21 parties need to:
- Make a joint application to a court as they cannot informally change their matrimonial property system.
- Give good reason why the change of a system is required
- Give evidence that they have notified creditors of the proposed change
- Give evidence to show that no other person will be disadvantaged if they change their matrimonial property system

Question 54

What does section 21 of the MPA state?

Answer 54

People can change their matrimonial system during the marriage according to section 21 of the MPA.

Question 55

What can a spouse do if the spouse is trying to displace their assets before a divorce?

Answer 55

If one spouse tries to displace the assets of the spouse the spouse may go to court to get:
- An interdict to prevent the other spouse from dissipating assets
- Obtain an order declaring the spouse a prodigal, to limit their capacity
- Permanent or temporary suspension of the powers of the other spouse to deal with the joint estate
- Obtain an order to get the joint estate divided immediately and an order to change the matrimonial system

Question 56

How is the accrual found?

Answer 56

Accrual is found by calculating the growth of the two spouses estates

Question 57

How is an ANC with the accrual system entered into?

Answer 57

If parties concluded an antenuptial agreement but they don’t specifically exclude the accrual system, then during the marriage the spouses have separate estates but at the end of the marriage each party is entitled to the half of the total growth of the spouses

Question 58

What is the default system of ANC?

Answer 58

The accrual system is the default of the ANC contract

Question 59

What happens when partied include an ANC without the accrual system?

Answer 59

If parties conclude an antenuptial agreement and exclude the accrual system, all parties’ estates remain separate during and at the end of the marriage.

Question 60

How was the accrual system introduced?

Answer 60

The accrual system was introduced by the MPA and only applied to marriages implemented after the act, in 1984 and 1988 dates are relevant because after that date the accrual system kicked in

Question 61

What is the recipe to finding out the amount of money divided at the end of a marriage in community of property?

Answer 61

1. Identify how they are married and why are they married that way
2. Identify any assets/liabilities falling outside of the joint estate and why do these fall outside
3. Divided the joint estate ((assets - liabilities) /2)
4. Any unauthorised transactions
   a) Is the transaction valid
   Did the third party know/ought to know?
   b) if a yes, is there an adjustment
   Did the spouse know/ought to know that they needed permission and was the transaction detrimental to the joint estate
   If the joint estate didn’t suffer a loss then there is no adjustment

Question 62

What is the inheritance rule in community of property and out of community of property?

Answer 62

• Inheritance in community goes into the joint estate unless it is specifically stated it falls outside the joint estate
• Inheritance out if community of property it goes out the joint estate unless it is specifically stated it falls inside the joint estate

Question 63

What does section 18 of the MPA deal with?

Answer 63

Section 18 only deals with suing your spouse deals with only bodily harm and this fall in a separate estate

Question 64

How does the principle pertium succesit in locum rei and res succedit in locum pretii applies to separate property?

Answer 64

If the spouse uses the money in the separate estate to purchase something else, it will fall outside of the estate. The thing that is used to replace an asset goes to where the assets comes from