Requirements Flashcards
Section 15(8) of the MPA
The value of the donation
* The reason for the donation
* The financial and social standing of the spouses
* Their standard of living
* Any other factor which in the opinion of the court
should be taken into account
General Rule – Section 17(1) of the MPA
➢ Spouses need written consent from the other spouse to litigate
1) Exceptions
2) Separate estate is involved.
3) Recovery of damages in case of a delict.
4) Profession, business or trade.
5) Institute matrimonial litigation.
6)Children from a previous marriage are the subject matter
Ex parte Menzies et Uxor
➢ Termination of Community of Property occurs by:
1) Death of one or both spouses
2) Divorce
3) An order for division in terms of section 20
4) A change in the matrimonial property system in terms of
section 21.
According to this judgment the
commencement values can only be disputed
on the common law grounds of:
Misrepresentation
▪ Duress
▪ Undue Influence
▪ Rectification
When does the Accrual System Apply?
1) The marriage must have been concluded after the commencement of the Matrimonial Property Act which
commenced on 1st November 1984 for Whites, Coloureds and Asians and 2 December 1988 for Blacks.
2) The spouses must have concluded a marriage in terms of an antenuptial contract whereby community of
property and community of profit and loss are excluded
3) Thus, the third requirement is that accrual must not be expressly excluded.
Dissolution occurs by
1) Death of one or both spouses.
➢ Annulment of a voidable marriage.
➢ Presumption of death order in terms of Section 1 of the Dissolution of Marriages on the Presumption of Death order.
➢ Divorce.
Protection of the Spouse’s Right to Share in Accrual : Section 8(1) of the MPA
To succeed it must be proved:
1) The applicant’s right to share in the accrual at dissolution is seriously jeopardized by the conduct of the others spouse.
2) That their right will probably be seriously jeopardized by the intended conduct of the other spouse; and
3) That other persons will not be jeopardized by the application
Section 4(1) of the Divorce Act and Section 8(2) of the RCMA
The court may accept the evidence subject to subsection
(1) that:
1)That the parties have not lived together has husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action.
2) That the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continued married relationship
3) That the defendant has in terms of a sentence of a
court been declared a habitual criminal and is
4) undergoing imprisonment as a result of such sentence,
as proof of the irretrievable breakdown of a marriage.
Defences Against an Action for Divorce (NB)
1) Spouse can prove that there is no irretrievable breakdown
or that the requirements for mental illness and unconsciousness are not met.
2) If a spouse can convince the court that there is a reasonable prospect of restoration of the marriage relationship and that this can happen through counselling,
treatment or reflection then there is a defence against immediate divorce.
3) If the marriage is voidable as annulment is then the correct procedure.
4) If the marriage is void, since divorce is only for valid unions
Refusal of Decrees of Divorce
❖ Section 5A
1) If it appears to a court in divorce proceedings that despite the granting of a decree of divorce by the court the spouses
or either one of them will, by reason of the prescripts of their religion or the religion of either one of them, not be free to remarry unless the marriage is also dissolved in
accordance with such prescripts or unless a barrier to the remarriage of a spouse concerned is removed, the court may refuse to grant a decree of divorce unless the court is satisfied that the spouse within whose power it is to have the marriage so dissolved or the said barrier so removed, has taken all the necessary steps to have the marriage so dissolved or the barrier to the remarriage of the other spouse removed or the court may make any other order that it finds just
Section 2B of the Wills Act
This applies where the parties divorced within 3 months of
the death of a spouse.
➢ Where this is the case, you treat the divorcee spouse as
having predeceased the deceased, unless the contrary
can be found from the Will
JW v Williams Ashman NO and Others 2020
Why Section 2B was NOT declared unconstitutional
1) Most people who get divorced generally would not want their former spouses to inherit in terms of a prior will which was made in their favor in happier times, especially not after arriving at a proprietary
settlement with them in terms of their respective matrimonial assets are to be distributed.
2) 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.
3) More people are opting to do their own divorces and to settle their differences by way of their own negotiated settlements without legal assistance.
4) Purpose of provision to prevent former spouse from benefitting in addition to previous settlement/divorce order.
5) The provision is one which is found in similar form in many open and democratic societies like ours (but is much less restrictive in South Africa then other
jurisdictions).
6) The impact of Section 2B is quite small
Requirements to grant Redistribution Order
1) The party requesting redistribution contributed directly or indirectly to maintenance or increase of estate of the other party.
2) The contribution can take the form of services, saving of expenses or any other manner.
3) Financial contributions amount to direct
contributions and services as indirect.
4) To determine whether a contribution has been made is a factual finding as described in the cases below.
Factors to Consider
1) Existing or Prospective Means of Spouses
2) Respective Earning Capacities
3) Financial needs and Obligations
4) Age of Spouses
5) Duration of the Marriage
6) Standard of living of spouses prior to divorce
7) Conduct relating to the breakdown of the marriage
8) Redistribution order granted
Consequences of Engagement
1) Claim for Breach of Promise
2) Transfer of Property
3) Gifts given during engagement
