Family law

Marriage contract requirements

Consensus
Capacity to act
Formalities
Executable
Lawful
Antinuptual contracts- do not necessarily come to an end when the marriage
contracts end.

Postnuptial contracts- must know section 21
Immutability stage was when spouses chose a matrimonial property system
and had to stick to it.
Section 21 allows parties to comply with certain requirements and then change
their matrimonial property
Must apply for change jointly
Sound reasons must occur for change- [facts that are valid and
convincing and anchored in reality](ex parte engelbretch is authority)
Creditors must receive notice from spouses of application for change
No other person must be prejudiced by the proposed change
The postnuptial contract will deem parties to be married in community of
property until application is successful
In ex parte Kros- wanted to change agreement with retrospective effect
(deemed to be married from start of marriage out of community of property)
Section 21 of Matrimonial Property Act- states about the regulation of FUTURE
matrimonial property. In ex parte Kros judge decides that it may be changed
retrospectively. Judge states that the purpose of the act is to allow flexibility.
Ex Parte Oosthuizen- judge decides future must be interpreted literally and a
change cannot be made retrospectively. Section 21 is deemed to be inflexible.
Ex Parte Burger- married out of community of property excluding property and
loss.(accrual system)
They wanted to include above. It can be interpreted that said it can be
implemented and the marriage may be changed retrospectively, but it must be
incorporated from the date of the marriage and if the accrual system is
implemented it must be done from the value of the assets at the start of the
marriage.
Authors Cronje and Heaton support flexibility and believe Kros case is the
correct decision.
Does not support judgement of Oosthuisen and Burger case( had different
facts)
Van Schalkwyk states that the Kros case is incorrect and flexibility is not
necessary.
Extra- judicial/ informal change of a marriage contract
Intended change without approval and registration of postnuptial
contract into s21
Honev vs Honey
No change except ito of s21
Informal change not even valid inter parties (informal post- nuptial contract
is VOID- not even valid between parties)
Reason for decision- (general immutability principle does not allow changes
except by application of section 21)
(compare position with informal anti-nuptial contract [ex parte Spinazzee-
said it is void but enforceable between parties)
Prescribed case JW v CW added
Facts
Divorce proceedings
Spouses married out of community of property excluding the accrual
Terms of the anti-nuptial exclude partnership
Parties tactically agreed to form a universal partnership conducting
farming enterprise known as JPW Boerdery)
Agreement to effect that all assets (both existing and future) would form
assets of partnership.
Legal problem:
Division of assets in divorce
Does universal partnership revoke or at least amend anti- nuptial
contract
Decision : YES- ( cant amend anti-nuptial contract informally)
Ratio decidendi:
Terms of anti-nuptial contract cannot be amended in this way (informally
without registration to s21
Thus irreconcilable with terms of the anti-nuptial contract and thus not
possible to substitute community of property with what is essentially in
community of property regime.
There was however no reference to the Honey case, it does however
support decision.
Marriage contracts of minors
Requirements pg 206
Signature of minor
Assistance of parent who has guardianship
No need for parents consent in case of a marriage
Presiding officer; if consent is required for marriage it is also required for
anti- nuptial contract.
Where the high court consents iit can determine manner of execution
Failure to obtain necessary assistance anti-nuptial contract is VOID
NB edelstien vs edelstien
Effect of common law principle
If minor enters into anti-nuptial contract without necessary assistance it is
VOID
If minor concludes marriage without marriage consent it is VOIDABLE
Two possible options
Marriage is not annulled
The marriage is annulled
S24(2)
S24(1)
Patrimonial consequences determined by court
Section 24(2) Matrimonial Property Act
If marriage of a minor is concluded without the required consent and the
marriage did not get annulled the patrimonial consequences of the
marriage are:
The same as if the minor was a major at the time of the marriage (has
full capacity to act)
And any anti-nuptial contract in terms of which the accrual system is
included is deemed to have been validly executed
Note there is a lack of certainty
Sinclair and Heaton
First part is the presumption that any anti-nuptial is deemed valid
Second part says only certain parts are valid
Recommends clarification
Visser and Potgieter
Emphasises on first part
All anti-nuptial contracts are valid (even those that do not include accrual)
Second part is merely an example

Van Schalkwyk
Only two options : in community of property or out of community of property
with accrual
If anti-nuptial contract does not include it is void and parties are married in
community of property
Cronje and Heaton
If anti-nuptial contract does not include accrual whole contract is invalid
Only clause that excludes accrual
Thus married with accrual
Heaton
Constitutionally suspect (she deems it unconstitutional because some
contracts are valid and others are not)
Patrimonial consequences of marriages concluded outside SA
Marital domicile- domicile of husband and conclusion of the marriage
Problems- common law rules can no longer be simply applied
Constitutionally suspect
Prescribed case- AS v CS 2011 (2) SA 360 (WCC)
Divorce of same- sex partners
Concluded a civil partnership in the UK in terms of the UK civil partnership
act (2004)
Status of marriage needed to be determined
Validity determined according to leci celebrationis
Patrimonial consequences stated by lex domicilli matrimonii
[55] principle incapable in same sex marriages]
[56] legislation must address problems
In case not an issue because parties concluded a deed of settlement
Chapter 8- marriage in community of property
Assets are co-owned by spouses
Joint estate is jointly administered by spouses
Spouses may also have separately administered estates (assets)
Cases where COM will not arise
Marriage contract- ant- nuptial or post-nuptial
Matrimonial domicile of husband- law of country domiciled will
determine consequences eg UKs default position is OCM
Blacks before 2 December 1998- before ( out of community of property)
Court order Ito s24(1)- the court can order if it is in or out of community
of property
Nature of marriage in community of property (note legal nature of ownership
of joint assets)
Assets acquired before and after marriage are combined
Assets are undivided(equal division) and indivisible(cannot sell off 1 part
of asset) with regard to co- ownership it is tied co ownership
Free co- ownership + divisible and transferable
Note Ex Parte Menzies (wanted to change matrimonial property system
from in community of property to out community of property. Court
described the change in position of co- ownership.
Note Estate Sayle v CJR- confirm spouses married in community
property co-owned all assets. During a time when husband had marital
power.( dont need to study facts)
Content (what are assets)
Anything with a monetary value are deemed as assets. Also include rights to
pension and occupation (incorporeal)
Right to pension and pension interest also included
Moremi case- confirms a right to occupation call fall in joint estate even
though it is in-corporeal as it is still an asset.
Operation of law (mere fact that you are married in community makes
you co-owner of all assets)
Separate estate/ assets
Assets excluded in a marriage contract
Assets excluded by will or deed of donation
Where assets are made accountable to a fide comissio
X

(married in COM) Y- fiduciaries
Z-fideicommissarius
(if Z becomes owner it will then become part of joint
estate)
Usafract of property will not form part of joint estate.
Engagement gifts and gifts made with the view to marriage to the wife(
not part of joint estate)
All engagements gift and gifts with a view to marriage should not form part of
joint estate and should be the property of the spouse.
Benefits to wife under friendly societies act- no privilege a wife receives
will form part of joint estate
Damages for non- patrimonial loss/ satisfaction
General rule: S18 (a) of MPA- satisfaction(ONLY SATIFACTION) received
as a result of a delict does not fall into joint estate but becomes the
separate property of the spouse.
Patrimonial damages- (normal damages)- form part of joint estate.
Non- patrimonial damages ( satisfaction), the distinction must be made
to get all marks.

Exception s 18(b) of MPA
Patrimonial damages(restricted to bodily injuries) can be claimed
separately if the delict is committed by the other spouse
Costs in matrimonial action-> one spousesues the other spouse for
divorce based on activities out of the marriage. If they fail to convince
the court the cost will now be awarded to be paid to the spouse who did
not claim costs.
Clothes are excluded
Donations between spouses- ( donates assets to other spouse)->form
part of separate estate.
Proceeds of life insurance policy:
Danielz case : if no beneficiary is nominated it forms part of separate
estate

Oshry case: no beneficiary nominated: forms part in joint estate
Beneficiary nominated rejects nomination-> joint estate
Beneficiary nominated who accepts nomination : separate assets(
estate)

Forfeited property ito prevention of Organised Crime Act
State may declare that is an instrumentality of an offence reffered to in
schedule 1 or is property associated with terrorist related activities
Act authorises court to exclude inncent spouse interest in proceeds of
property from forfeiture order
Case; Mazibuko v National Director of Public prosecution

Replacement assets also separate from joint estate, these fruits do
however form part of the joint estate

Joint debts:
Co- debtors ( they share debts when married in COP)
Nedbank v van zyl ( prescribed)- cannot stand surety for own debts

Which estate is liable??
Either joint estate OR separate estate of spouses
Must distinguish between anti-nuptial and post nuptial debts.
For anti-nuptial debts spouses are BOTH liable.
Post nuptial debts: must determine if it is contractual co- debtors OR
delictual action.- s19 of MPA specific order
1 separate
2joint- if joint then right of recourse( the other spouse may claim half of
amount taken from joint estate at the time of the dissolution of the
marriage)

Attachments of separate estates
Separate assets of one spouse cannot be attached for private debts
(separate estate) of the other spouse
Note there is no specific order with regard to private debts.

Separate and joint estate can be attached for separate debt.

Separate estates of both spouses AND joint estate can be attached for
joint debt.

NB : DU Plessis v Pienaar

8.4) SPOUSES CAPACITY TO ACT
Nature of concurrent administration


equal/ independent joint administration
administration


s15(1) s15(2) and (3)
no consent needed consent required


reasons for limitation



kotzee v oosthuizen

spouses married in COP, the one spuse died, an executor sold the
matrimonial home without the consent of one spouse. The judge said
NO- s15 is no longer applicable and the executor could do so without
prior consent



Prior written
and attested
Written and
attested(
can be
obtained
after)
written Oral/
informal/
tacit
No consent
Transfer of
ownership in
property
Act of
registering
ownership in
deeds office
Contract of
sale of
property
Can be
obtained
after the
contract has
been made.-
can be
ratified.
Sales of
shares etc
Sale of
household
effects of
the common
household
See ( e)
p228
Suretyship Credit
agreement
investment Donations?
Purchase of
immovable
property


Exception in ordinary course of business, trade profession in terms of S
15(6) applicable.
(ABSA v De Goede (1997) 2 all SA 427 (A))-(investigated exception)
Facts-
Cc providing passenger services
One active partner
2 or 3 silent partners
Cc wanted to borrow money from the bank
Had to provide surety, directors stood surety in their personal capacity
for lydenburg passenger services cc
Cc went bankrupt and bank claimed loan from directors
Mr de Geode did not acquire wifes signature
ABSA argued it was entered into in ordinary course of business
ABSA won case- standing surety is what you would expect from director
If you stand surety of another persons debt you need to get spouses
written consent prior to the surety. If you stand surety in business trade
of profession it is not needed

Ratification possible

Effect of lack of consent
ABSA v Lydenburg passenger services(judgement before de geode case)
Probably void
Protective measures


Of 3
rd
parties of spouses against each
other

S15(9)a distinguish between
If did not know and cannot reasonably
Know= transaction deemed valid common law MPA
s15(9)(B)
Govender case s16(1) and (2)
Distillers corp v Modise s20
Distillers corp v Modise
FACTS
Mr modise (spouse2), married in COP
Stood surety for stillers corp
He had not got spouses consent
He claimed he was not liable for suretyship
There was a clause asking him specifically if he had capacity to act
Distillers corp said they could not have reasonably known he was married in
COP
Court said nobody would have doubted Modises capacity.
Court concluded nobody would have known about his capacity.

Note PG231 where spouses are against each other,
S15(9)(b) ( 2 requirements)
If there is no agreement and the spouse 1) knew, or ought reasonably to have
known consent would not be given,2) and the estate suffers a loss, THEN a
right of recourse could be claimed.
If a spouse unreasonable refuses consent the court can give consent
S21 gives court right to divide assets of joint estate
Court can move spouses rights to consent and sell assets
Do not learn pg 232,233,234
Spouses capacity to litigate( capacity of spouse to sue or be sued in court)




Inter parties against 3
rd
parties
General rule -effect of general rule,
Exceptions -sequestration
Separate estate, satisfaction -liability for debt
Profession, trade, business

During joint estate after
dissolution
Nb Maharaj case





General rule
If married in COP- need permission (written consent of spouse)

Exceptions
Separate estate sued
If a delict occurs - satisfaction
In the matter of private trade and business practices

Common law exceptions
Consent for divorce proceedings
For a case involving children from a previous marriage
If there is no consent the legal proceedings ARE not effected BUT the act
does allow a court deciding an issue of proceedings lacking consent the
costs awarded must come first from separate estate- then joint estate and a
right of recourse will be available.
Liability for debt (who can be sued)
Differentiate debts outstanding when estate is in existence(for contractual
debt spouses can be sued or spouse can be sued separately.
Delictual debt- spouse can be sued separately ( s19 states attachment of
assets)
AND Debts outstanding after the dissolution of the marriage in COP
Case of contractual debt- occurred- case of outstanding antinuptial
debt- can be assumed spouse who incurred debt can be sued, if he is
sued and pays full debt he should be able to claim half that amount
from other spouse because they are co- debts
Post nuptial contractual debts- must recover half from spouse who
incurred the debt and half from the spouse who did not incur the
debt. (they are divorced)

Maharaj case
If debt arose during the course of the marriage, you can sue the
spouse who incurred the debt as well as half from the other house.

In the case of household neccesaries you can sue one or both
spouses.
In case of delict- sue one spouse.





When does the accrual apply (s2) MPA
3 requirements

ANC non
excluded
Date odendaal v
odendaal v odendaal
1-11-84 odendaal, terms express
exclusion can be
2-12- 88 of ANC interpreted widely made
orally as long as
(try ascertain racial groups)

Accrual applicable- marriage out of COP without profit and loss.

Odendaal case-
Agreed to keep assets separate
Had to decide if agreement is sufficient , said oral agreement is
sufficient. ->interpreted ANC for purpose of accrual
Accrual system can be specifically excluded but is the default system for
marriage out of COP
Court concluded in you can orally excluded COP and profit and loss then
accrual can also be excluded if expressly excluded.
The odendaal case did however include accrual

Content of accrual (s3)

Difference between spouses/ 2

Claim by spouse with smaller or no accrual
When?
Reeder v Softline


Contingent vested

( authority for claim for accrual is a contingent right and
And becomes vested upon dissolution of the marriage)















Calculation of accrual of respective estates

End value- commencement value = accrual


Net value at dissolution Net value at conclusion


Accrual determined before In ANC/ statement
Testamentary dispositions
Donation, mortis causa Deemed nil (liabilities assets
not declared)
& interstate succession

Excluded satisfaction S6 (3) prima facie or
conclusive proof

Excluded inheritance / NB Olivier v Olivier
(conclusive)
Legacy/ donation Tomas v Tomas ( prima
facie)

donations between spouses excluded Exclude assets
except mortis causa

MB v NM Adjustment to CPI( must
consider inflation and
Convert It to current value)

Donations between spouses are not take into consideration when calculating
accrual.(note amount is already taken out of donors estate)
Mortis causa- donation that will only take effect at death of spouse- it is not
deducted from either estate.

Olivier v Olivier
Said commencement was nil
At dissolution of marriage said accrual was more
Court had to look at MPA
Said value is s6(3) prima facie( can be rebutted) -> despite this provision
ANC is a binding contract.
Said if you agreed to the contract you are bound by it, only 3
rd
parties
can try disprove that.

Thomas v Thomas
prima facie is authoritative
court concluded s(6) 3 is not ambiguous and says value reflected in ANC
is Prima Facie and says even if you a contracting party it can be
disproven

MB b NB
If common household no longer exists, when is end value determined
from?
End value must be determined at litis contestatio( point at which
matters that have been disputed in court have been identified)
Which means :the end value is determined ONLY at the time of litis
contestatio

MPAs8 gives spouse remedy when other spouse deliberately disposes of assets
Approach court to ask for immediate division of accrual
Must prove:
Interest in accrual has already been seriously jeopardised
Interest in accrual will in future be seriously jeopardised
Does not disadvantage another party

Spouse can claim for loss already suffered

Chapter 10- dissolution of marriage

Ways of dissolution


Death divorce
Presumption of death
Common law inquest

Separate applicaton