Module 7

Question 1

What does section 17 of the MPA state?

Answer 1

The capacity to litigate of both spouses is now limited in terms of section 17. Section 17(1) spouses married in community of property require written consent of the other spouses before they can bring or defend a court case.

Question 2

What are the three situations that the spouses do not require consent to litigate according to section 17?

Answer 2

Three situations 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 3

What are the marriages that can be entered into with an ANC?

Answer 3

• Marriages in community of property with the exclusion of current and future assets
• Marriage out of community of property without the accrual system
• Marriage out of property with the accrual system

Question 4

What are the formalities of an ANC?

Answer 4

The antenuptial contract is concluded ante (before) the marriage. It has to be in writing, signed and registered by a notary.

Question 5

What is an ANC?

Answer 5

An ANC contract is a special notarial contract which the spouses enter into before they marry. The spouses agree on how their property will be shared during and after the marriage.

Question 6

What can spouses include in their ANC?

Answer 6

Spouses can include any type of stipulation in their ANC, provided that it is not impossible, illegal or against public policy

Question 7

When is an ANC not valid?

Answer 7

If the ANC did not comply with formalities the contract is not valid as against third parties like creditors, but they can still be valid between the spouses although more difficult to prove.

Question 8

Can spouses claim from other spouses for their proportion of the household necessity?

Answer 8

Spouses who marry after the commencement of the MPA do not have an automatic right of recourse against the other spouse if they contribute more than their proportionate share of the household necessaries unless their ANC specifically states it, this is in accordance to section 23(4) of the MPA

Question 9

What do spouses married in the without the accrual system share?

Answer 9

• Mutual duties of support have obligations of support.
• They are also both responsible for the provision of household necessities, if one spouse buys household necessities on credit the creditor can sue either spouse.
• Sharing expenses
• Spouses married out of community of property are jointly and severally liable to third parties for all debts incurred by either of them in respect of necessaries for the joint household, one spouse is able to incur contractual obligations on behalf of the other
• Spouses married out of community of property can become joint owners in the same way as any other two people. Their shares are divisible and can be sold to third parties

Question 10

Can spouses with an ANC have the reciprocal duty to maintain each other removed?

Answer 10

The reciprocal duties to maintain each other cannot be excluded from the marriage in the ANC. Each spouse has the legal duty to maintain the other, the amount depends in the spouse needs for maintenance and their abilities to maintain the other

Question 11

How can parties share after the marriage when married out of community in property?

Answer 11

• At death if the spouse dies intestate, intestate succession will happen
• At death if the spouse dies testae then the surviving spouse can claim through the maintenance of surviving spouse act
• At divorce the court can order post-divorce maintenance form one spouse
• At divorce the court can order redistribution order/transfer of assets

Question 12

What does it mean when couples are married out of community of property?

Answer 12

Couples marry out of community of property; each spouse keeps their separate estate. Each spouse is free to do whatever they choose with their own money. They have mutual duties of spousal support and they share responsibility for the expenses of the joint household

Question 13

What does section 3(1) of the MPA state?

Answer 13

Section 3(1) of the MPA is when spouses whose estate shows no accrual or a smaller accrual than the estate of the other spouses acquires a claim against the other spouse for an amount equal to half of the difference between the accrual of the respective estate of the spouses

Question 14

How do you calculate the accrual according to section 3(1)?

Answer 14

Section 3(1) of the MPA are calculated as:
- Calculate how much spouses estate has grown during the marriage, if the spouses has decreased in value there is no growth, thus the accrual value is 0
- Work out how much more one spouse’s estate has grown than the other
- Spouse is entitled to half the amount by which the growth of the other spouses estate exceeds her

Question 15

What section of the MPA deals with the exclusion of assets in an accrual?

Answer 15

In the MPA, certain amounts must be excluded from the accrual. The items that must be excluded from the accrual are in section 4 and 5.

Question 16

How does the accrual matrimonial system work?

Answer 16

The accrual matrimonial property system allows the spouses to share the financial gains or growth of their estates that accrued during the marriage. At the end of the marriage the spouses share the financial gains made by the spouses during the marriage. The spouse whose estate increases or grows more must share some of this growth with the spouse whose estate grows less.

Question 17

What assets in the accrual are excluded according to section 4 and 5 of the MPA?

Answer 17

• Non-patrimonial delictual damages: Damages received for pain & suffering, Damages received for defamation
• Gifts, inheritances and any assets replacing them that have been excluded in the will or the spouses agreed in the ANC that gifts and inheritances should be excluded
• Very valuable gifts which the spouses gave one another during the marriage
• Donations between the spouses

Question 18

What is the accrual calculation?

Answer 18

ACCRUAL (growth) = END VALUE – COMMENCEMENT VALUE

Question 19

What is commencement value?

Answer 19

The commencement value is the worth or value of the estate at the beginning of the marriage, the commencement value can never be negative

Question 20

How do you calculate commencement value?

Answer 20

Commencement value = Assets – Liabilities (debts)

Question 21

Why does the accrual use the CPI?

Answer 21

Accrual system takes into account these changes in the buying power of money reflecting inflation on the inherent value.

Question 22

What happens if parties don’t add a commencement value in their ANC?

Answer 22

The parties have to stipulate the commencement value in their ANC, if they don’t stipulate a commencement value then the commencement is taken as 0.

Question 23

How do you calculate the adjusted value of the commencement value with inflation?

Answer 23

CV x CPI = the adjustment value.

Question 24

How do you calculate the spouses accrual?

Answer 24

How do you calculate spouses accrual:
- Calculate end value (assets minus liabilities)
- Exclude all your excluded items from you EV
- Find your commencement value
CV x CPI = apparent accrual
- Accrual = EV - CV
- The value of the accrual given to the party with the smaller accrual is half the difference in the accrual amount: 1/2 x (larger accrual - smaller accrual)

Question 25

What does section 8(1) of the MPA state?

Answer 25

Spouses can also ask for an early division of the accrual if they see that the other spouses are squandering the assets and thus reducing the amount that they are likely to get at the end of the marriage in terms of section 8(1) of the MPA.

Question 26

When will the court order a division of assets in terms of section 8 of the MPA

Answer 26

Can apply to court for an immediate division of the accrual, the court will order this division of assets if it satisfied:
- No third party will prejudiced as a result of the immediate division of the accrual
- The division is necessary to protect the interests of the applicant spouse because of the actions of the other spouse