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Questions and Answers
What is the liability of each co-debtor when the damage to the joint estate is R100,000?
What is the liability of each co-debtor when the damage to the joint estate is R100,000?
- R75,000
- R25,000
- R50,000 (correct)
- R100,000
In a marriage in community of property, a spouse can perform juristic acts regarding the joint estate without the other spouse's consent.
In a marriage in community of property, a spouse can perform juristic acts regarding the joint estate without the other spouse's consent.
True (A)
What is the requirement for prior written consent when transferring ownership of immoveable property?
What is the requirement for prior written consent when transferring ownership of immoveable property?
Consent must be attested to by 2 competent witnesses.
In the case of Kotze v Oosthuizen, consent requirements apply only when both spouses are _____ .
In the case of Kotze v Oosthuizen, consent requirements apply only when both spouses are _____ .
Match the following situations with the requirement for consent:
Match the following situations with the requirement for consent:
Which of the following is an exception to the requirement for prior written consent?
Which of the following is an exception to the requirement for prior written consent?
Ratification of consent after the fact is allowed in all circumstances.
Ratification of consent after the fact is allowed in all circumstances.
What amount is Y entitled to in the case of joint liability?
What amount is Y entitled to in the case of joint liability?
What may be required for a donation made by a spouse to a third party?
What may be required for a donation made by a spouse to a third party?
A transaction that is contrary to consent requirements is automatically valid.
A transaction that is contrary to consent requirements is automatically valid.
In the case of Visser v Hull and Others, what does the court define as the donation when property is sold below market value?
In the case of Visser v Hull and Others, what does the court define as the donation when property is sold below market value?
A spouse can make a donation without consent if it does not ______ the other spouse's interest in the joint estate.
A spouse can make a donation without consent if it does not ______ the other spouse's interest in the joint estate.
Match the following terms with their definitions:
Match the following terms with their definitions:
Which of the following factors is NOT considered when assessing a donation from one spouse to a third party?
Which of the following factors is NOT considered when assessing a donation from one spouse to a third party?
No consent is required for any transaction described in the MPA.
No consent is required for any transaction described in the MPA.
What happens to a transaction that is made without necessary consent according to the MPA?
What happens to a transaction that is made without necessary consent according to the MPA?
Which of the following is NOT a cause for dissolution of marriage?
Which of the following is NOT a cause for dissolution of marriage?
The Divorce Act applies only to civil marriages.
The Divorce Act applies only to civil marriages.
What does the case Visser v Potgieter suggest about divorce law?
What does the case Visser v Potgieter suggest about divorce law?
Dissolution of marriage can occur through ________.
Dissolution of marriage can occur through ________.
What grounds were introduced by common law for divorce?
What grounds were introduced by common law for divorce?
Match the types of marriage with their applicability under the Divorce Act:
Match the types of marriage with their applicability under the Divorce Act:
The Divorce Act replaced fault-based systems of divorce.
The Divorce Act replaced fault-based systems of divorce.
When did the Divorce Act start applying to Muslim marriages according to Sharia law?
When did the Divorce Act start applying to Muslim marriages according to Sharia law?
Which of the following is excluded from the joint estate in a marriage?
Which of the following is excluded from the joint estate in a marriage?
Damages for patrimonial loss are included in the joint estate.
Damages for patrimonial loss are included in the joint estate.
What section of the Matrimonial Property Act addresses the exclusion of certain assets from the joint estate?
What section of the Matrimonial Property Act addresses the exclusion of certain assets from the joint estate?
Satisfaction received from a 3rd party for damage arising from delict becomes a ______ property of the injured spouse.
Satisfaction received from a 3rd party for damage arising from delict becomes a ______ property of the injured spouse.
Match the sections of the Matrimonial Property Act with their descriptions:
Match the sections of the Matrimonial Property Act with their descriptions:
What does the joint estate consist of?
What does the joint estate consist of?
In a tied co-ownership, each spouse owns a specific percentage of each asset.
In a tied co-ownership, each spouse owns a specific percentage of each asset.
What are corporeal things?
What are corporeal things?
The _____ includes rights and claims that have monetary value.
The _____ includes rights and claims that have monetary value.
What is the term used for the resources that provide value in a marriage?
What is the term used for the resources that provide value in a marriage?
Match the following terms with their descriptions:
Match the following terms with their descriptions:
Ownership of assets in a marriage vests by operation of law (ex lege).
Ownership of assets in a marriage vests by operation of law (ex lege).
What must both spouses agree to when selling a shared asset?
What must both spouses agree to when selling a shared asset?
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Study Notes
Joint Estate
- Consists of:
- Assets and debts of both parties before marriage
- Profit and loss during the marriage
- Expressed through:
- Tied Co-Ownership:
- Half undivided indivisible share.
- Both parties own half of everything
- Cannot share their half
- Example: Owning half of a chair.
- Common Debts
- Concurrent Administration
- Tied Co-Ownership:
Overview of Community of Property
- Consists of assets and debts.
- Assets: Resources granting value. Example: Owning a house.
- Debts: Money owed for assets. Example: Renting a house.
Assets in the Joint Estate
- Generally, ownership vests by operation of law (ex lege)
- Assets include corporeal and incorporeal things:
- Corporeal: Tangible things, e.g., a pen.
- Incorporeal: Rights and claims with monetary value, e.g., patents or pension interests.
Spouses' Capacity to Act
- Concurrent administration
- Equal administration
- Joint administration
- Matrimonial Property Act (Section 15):
- Section 15(1): A spouse can perform any juristic act regarding the joint estate without the other spouse's consent.
- Kotze v Oosthuizen: Consent requirements only apply when both spouses are alive.
Consent Requirements
- Prior written attested consent required for:
- Transfer of ownership of immovable property
- Registering a mortgage bond over immovable property
- Signing as surety for a third party's debt
- Rules:
- Must be attested to by two competent witnesses
- Ratification is not possible
- General consent not possible
- Exception: Ordinary course of profession, trade, or business
- Tacit consent may suffice
Donations by a Spouse
- General Rule: A spouse can make a donation without the other spouse's consent unless:
- The donation unreasonably prejudices the other spouse's interest in the joint estate.
- The donation is contrary to the consent requirements mentioned above.
- Factors considered (Section 15(8) of MPA):
- Value and reason for the donation
- Spouses' financial and social standing
- Standard of living
- Other relevant factors
- Visser v Hull and Others: If property is sold below market value, the difference represents the donation.
Transactions Requiring No Consent
- Transactions not mentioned in the Act do not require consent.
Consequences of Non-Compliance
- The MPA is silent on the consequences.
- ABSA v Lydenburg Passenger Services:
- Acts done against consent are void
- Result: If an asset is transferred, it can be reclaimed.
- Consider the protection of third parties (Section 15(9)(b) of MPA).
- Transaction without consent is void.
- If the third party is bona fide, the transaction is valid and enforceable.
Divorce Law
- Earlier systems were fault-based and required proof of a spouse's misconduct.
- Common law introduced grounds of incurable mental illness and habitual criminality.
- The Divorce Act replaced these systems, streamlining the process.
- Visser v Potgieter: Divorce law regulates divorce and its consequences, not marriage maintenance.
Application of Divorce Act
- Fully applicable to civil marriages and unions.
- Partially applicable to customary marriages.
- Women's Legal Centre Trust: Divorce Act also applies to Muslim marriages concluded under Sharia law (after 15 December 2014) if legal proceedings have started but not concluded.
Dissolution of Marriages
- Dissolution occurs through:
- Death of one or both spouses
- Annulment of a voidable marriage
- Presumption of death order (Section 1 of Dissolution of Marriages on the Presumption of Death order)
- Divorce
Assets Excluded from the Joint Estate
- Assets excluded in a marriage contract.
- Assets excluded in a will or deed of donation.
- Satisfaction and damages for personal injuries (Section 18(a) and (b) of the Matrimonial Property Act):
- Even with a joint estate, spouses can have separate estates.
Satisfaction and Section 18
- Section 18(a) of the MPA: Delict by a third party against one spouse
- Any amount recovered by a spouse in damages (other than for patrimonial loss) due to a delict against them does not fall into the joint estate, but becomes their separate property.
- Understanding Satisfaction: Satisfaction received from a third party for damage arising from delict is separate property of the injured spouse.
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