FMR 121 Semester Test 2 Notes - South African Law

1 Pass and Prosper FMR 121 Semester Test 2 Notes Pack Theme 3: Variable Consequences of a Marriage Introduction Overview ❖ The default property system in South Africa is in Community of Property....

1 Pass and Prosper FMR 121 Semester Test 2 Notes Pack Theme 3: Variable Consequences of a Marriage Introduction Overview ❖ The default property system in South Africa is in Community of Property. ❖ Edelstein v Edelstein (NB) Confirms that there is a rebuttable presumption that all marriages are by default to be regarded as in community of property. ❖ You must enter into a union contract (also known as a antenuptial contract) in order to exclude the default system: Out of Community of Property with Accrual System Out of Community of Property without the Accrual System ❖ The default system can thus be changed. ❖ Consider the Matrimonial Property Act 88 of 1984 Cases where Overview Community of ❖ Instances in which Community of Property does not occur Property does The default property system is a rebuttable presumption not arise which is rebutted by: ▪ A Valid Union Contract ▪ The Law of the Matrimonial Domicile ▪ Muslim Marriages ▪ Black marriages (no longer the case) Sithole v Sithole (AS v GS) (NB)  Black marriages before 2 December 1988 were previously regarded as out of community of property but this was changed as a result of this case and the presumption is now the same as the default system. Legal Nature of Overview of Asset Classes In Community ❖ Assets Before Conclusion of the Union of Property In Community of Property = Part of Joint Estate ❖ Assets After the Conclusion of the Union Part of Joint Estate ❖ Debts Before Conclusion of the Union Part of Joint Estate ❖ Debts After Conclusion of the Union Part of Joint Estate Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  2 Pass and Prosper The Joint Estate ❖ Thus the joint estate consists of: Assets and debts of both parties before marriage. Profit and Loss during the marriage. ❖ This is expressed through: Tied Co-Ownership ▪ Half undivided indivisible share. This means that both parties to the marriage own half of every single thing and they may not share their half. For example if you own 2 chairs. Each of you owns half of each chair. Obviously you cannot sell half of the chair. Instead if you wanted the value of half the chair, you’d need to sell the entire chair (and both agree to sell it) and then you each take half of the money paid when you sold that chair. Common Debts Concurrent Administration Content of Overview Universal ❖ It consists of Assets and Debts Community of Assets = Resources that grant you value. If you own a house Property that is an asset because you could sell it (alienate it) for income. Debts = Money you owe for assets you use. If you rent a house as opposed to renting it, you might owe debt which makes it a liability. Assets (NB!) ❖ Generally: Ownership vests by operation of law (ex lege). Assets include corporeal and incorporeal things ▪ Corporeal Corporeal things are things you can see and touch. For example a pen which you buy in a shop. ▪ Incorporeal These are rights and claims with a positive monetary value. The opposite of corporeal is incorporeal, which are things you cannot touch or see. For example, you might own a patent or an idea. Examples include pension interests and the right of occupation (to live in a house/building/apartment). ❖ Assets which do not form part of the joint estate (NB): Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  3 Pass and Prosper 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 (NB!) This means that even where parties have a joint estate they may also have separate estates. Satisfaction and Section 18 (NB) ❖ Section 18(a) of the MPA: Delict by 3rd Party against 1 spouse Notwithstanding the fact that a spouse is married in community of property: ▪ Any amount recovered by him or her by way of damages, other than damages for patrimonial loss, ▪ By reason of a delict committed against him or her, ▪ Does not fall into the joint estate but becomes his or her separate property. Understanding Satisfaction ▪ Satisfaction (damages for delict) received from a 3rd party for damage arising from delict becomes separate property of the injured spouse. ❖ Section 18(b) of MPA: Delict by Spouse Against Other Spouse Notwithstanding the fact that a spouse is married in community of property: ▪ He or she may recover from the other spouse damages in respect of BODILY INJURIES suffered by him or her; and ▪ Attributable either wholly or in part to the fault of that spouse; and ▪ These damages do not fall into the joint estate but become the separate property of the injured spouse. Satisfaction and Patrimonial damages received from the spouse for bodily injuries fall into separate estate. ❖ Delictual Claims between Spouses Van Der Merwe v Road Accident Fund (NB) ▪ Facts It is common cause between the parties that the insured driver intentionally knocked his wife over with the motor vehicle and went on to reverse over her while she was lying on the ground. It comes as no surprise that their marriage (in community of property) has since ended. They are divorced. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  4 Pass and Prosper In her particulars of claim, Mrs. Van der Merwe specifies her bodily injuries to include a ruptured bladder, a fractured pelvis, skeletal fracture, severe contusions, soft tissue injury to her back, lacerations and permanent disfigurement of her buttocks and stomach. All of these injuries resulted in her prolonged hospitalization, suffering pain and discomfort, loss of amenities of life, permanent disability and cosmetic disfigurement. On this account, she claims damages of nearly R500’000.00 consisting of special damages made up of past and future medical expenses and future loss of income earning capacity and general damages for pain and suffering, loss of amenities of life and disfigurement. ▪ Result Claims for bodily injury are possible under S18(b). Claims for pain and suffering caused by bodily injury can also be claimed. Claims for loss of income resulting from the bodily injury can also be claimed. They all form part of the separate estate and not the joint estate. Debts ❖ General Debts incurred before conclusion of the union. Debts incurred after the conclusion of the union They are co-debtors ❖ Joint Debts General Rule ▪ Joint debts can be recovered from separate estates or joint estate of the spouses (no particular order). Exception ▪ Section 19 of MPA (NB) Spouse held liable for a delictual debt There is a specific order of recovery.  First Recover from separate estate of debtor and if insufficient then from the joint estate.  Provision for an adjustment at the division of the joint estate if any amount was recovered from the joint estate. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  5 Pass and Prosper ❖ Question 1 Facts ▪ X and Y are married in community of property. While driving to a friend’s house, X and Y become embroiled in an argument that eventually becomes so heated that X forcefully pushes Y out of the car. The car is badly damaged in the process and Y sustains multiple injuries in the subsequent fall from the car, including concussion, several broken ribs, a broken leg and a crushed arm which eventually has to be amputated. It takes six months before Y can start working again. As a result of her injuries: a) Y incurs medical expenses of R50’000.00 b) Y loses six months’ salary which amounts to a loss of R30’000.00 c) Y suffers extreme pain and suffering, disfigurement and loss of amenities of life following the amputation of her arm. Questions ▪ 1. Will Y be able to claim (a), (b) and (c) from X? Why or why not? ▪ 2. If Y succeeds with her claim against X in question 1 above, will the moneys she receives for (a), (b) and (c) fall into the joint estate? ▪ 3. Can Y also claim for the damage to the car from X? Give a reason for your answer. Answers ▪ 1. Yes, for (a), (b) and (c) on the basis of Section 18(b) a spouse may claim for delictual damages where that damage is caused by the other spouse. The damage in question amounts to bodily injuries which were caused by the other spouse. This is confirmed by the Van der Merwe case which has similar facts. This case also confirmed that loss of income resulting from bodily injury can be claimed under 18(b). ▪ 2. As per section 18(b) of the MPA it does NOT form part of the joint estate, but rather forms part of the claimant’s separate estate. ▪ 3. She may not claim for damages under either 18(a) or (b). Under paragraph 18(a), her spouse is not 3rd party and the damage would be patrimonial. Furthermore, under 18(b) the damage is to property and not bodily Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  6 Pass and Prosper injury. Thus, Y will not succeed in claiming damage to the car. ❖ Question 2 Facts ▪ X and Y are married in community of property. ▪ In 2021, X assaulted B and B successfully instituted an action for delictual damages in the amount of R100’000 against X. Since X had no separate estate, this debt was paid from the joint estate. ▪ In 2023 Y institutes an action for divorce against X. The joint estate is worth R800’000 at the time of divorce. Y is aggrieved by the fact that the value of the joint estate, and consequently her share therein, was negatively affected by the wrongful, blameworthy conduct of X in 2021. Does Y have any right of recourse against X? ▪ Advise her with reference to relevant authority and the applicable principles. Answer ▪ Yes Y does have a right of recourse. ▪ Section 19 provides that a debt should first be taken from the separate estate, and failing that the joint estate. ▪ Section 19 also provides for an adjustment of the estate. ▪ As they are co-debtors, and the damage to the joint estate is R100’000.00 they are each liable for R50’000.00 and therefore, Y is entitled to R450’000 and X is entitled to R350’000. Spouses’ Overview Capacity to Act ❖ Spouses’ Capacity to Act Concurrent Administration ▪ Equal Administration ▪ Joint Administration Matrimonial Property Act (Section 15) ▪ S15(1) – Subject to the provisions of subsections (2), (3) and (7), a spouse in a marriage in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse. ▪ Kotze v Oosthuizen Consent requirements only apply where both spouses are alive and are not applicable to executors of deceased estates. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  7 Pass and Prosper Consent Requirements (NB) ❖ Prior written attested consent Applies to: ▪ Transfer of ownership of immoveable property ▪ Register a mortgage bond over immoveable property ▪ Signing as surety for debt of third party Rules for: ▪ Must be attested to by 2 competent witnesses. ▪ Ratification (consent after the fact) is not possible. ▪ General consent not possible. ▪ Exception: Ordinary course of profession, trade or business. (Lydenburg Passenger Services case) Amalgamted Bank of South Africa Bpk v De Goede en n’ Ander  The expression ‘in the ordinary course of his business’ means that if a transaction is normally performed between business people it qualifies as ‘in the ordinary course’ and “business” refers to ‘work, task or function.’ ❖ Written attested consent Applies to: ▪ Contract to sell immoveable property ▪ Credit Agreements Rules for: ▪ Must be attested to by 2 competent witnesses ▪ Ratification is possible ▪ General consent is not possible ▪ Exception: Ordinary course of profession, trade or business. (If your job is in property and credit agreements you won’t need this consent). ❖ Written consent Applies to: ▪ Selling shares ▪ Other assets mainly held as an investment Rules for: ▪ Ratification is possible ▪ General consent is possible ▪ Exception: Ordinary course of profession (if it is your job to sell investment shares, etc, then you won’t need this consent. ❖ Oral or tacit consent Applies to: Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  8 Pass and Prosper ▪Selling furniture or other effects of the common household. ▪ Receipt of money due to other spouse or joint estate. Rules For: ▪ Not prescribed. ▪ Must obtain consent but even tacit consent may be sufficient. ❖ Donations by a spouse to a 3rd party (NB) General Rule ▪ A spouse may make a donation without the consent of the other spouse if the donation or alienation does not, or probably will not unreasonably prejudice the interest of the other spouse in the joint estate and provided that the donation is not contrary to the consent requirements mentioned above. Factors Considered ▪ 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. Visser v Hull and Others ▪ The court held that if property is sold below its municipal or market value, the difference between the municipal or market value and the value for which it was sold, represents the donation. ❖ Transactions for which no consent is required No consent is required for a transaction if it is not mentioned in the Act. Consequences ❖ Consequences for non-compliance The MPA is silent on the consequences. ABSA v Lydenburg Passenger Services (NB) ▪ If the act is contrary to consent the act is void. Result: If the asset is transferred it can be reclaimed. However, consider the protection of 3rd parties – Section 15(9)(a) of MPA. ❖ The effect on the validity of that transaction and the joint estate where there is no consent. The transaction is void. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  9 Pass and Prosper However, if the 3rd party is bona fide, then the position changes and the transaction is valid an enforceable. Protective Measures (NB) ❖ Section 15(9)(a) of MPA – Bona fide 3rd Party Spouse enters into transaction with 3rd party contrary to consent requirements. If the 3rd party does not know and cannot reasonably know that the transaction is contrary to consent requirements. Then the transaction is deemed to have been entered into WITH REQUIRED CONSENT. ❖ Section 15(9)(b) of MPA – Protection for spouse whose consent was required Spouse who enters into the transaction who knows or ought reasonably to know that he will probably not obtain consent required from other spouse; and The joint estate suffers a loss as a result of the transaction Then an adjustment must be effected in favor of the other spouse upon division of the joint estate. ❖ Section 16 S16(1) – This subsection authorizes a court to give a spouse leave to enter into a transaction without the consent of his or her spouse in the following two cases: ▪ (1) Firstly, where the other spouses withholds his or her consent for the transaction unreasonably. ▪ (2) Secondly, where the consent can for any other reason not be obtained and where good reason exists not to require the consent. S16(2) – If it is necessary to protect the interest of a spouse in the joint estate, the court can suspend any power indefinitely or definitely. ❖ Section 20(1) This sub-section makes it possible for a spouse to apply for the immediate division of the joint estate during the existence of a marriage. The application will be successful only if the court is satisfied that: ▪ The spouse’s interest in the joint estate is seriously being prejudiced by the conduct of the other spouse; or ▪ The spouse’s interest in the joint estate will probably be seriously prejudiced by the proposed conduct of the other spouse; and ▪ Other person will not be prejudiced by the division. If the division is granted, the court may order the division of the joint estate in equal shares or on such other basis as the Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  10 Pass and Prosper court may deem just. A court making such order may also order that the community of property system be replaced by another property system. Donations (Refresher of the Above) ❖ Donations Depends if donation will unreasonably prejudice the interest of other spouse it requires consent. You must consider the: ▪ Value of donation ▪ Financial and Social Standing of Spouses ▪ Standard of Living ▪ Reason for the Donation ▪ Any other factor Spouses’ Overview Capacity to ❖ General Rule – Section 17(1) of the MPA Litigate Spouses need written consent from the other spouse to litigate. ❖ Exceptions Separate estate is involved. Recovery of damages in case of a delict. Profession, business or trade. Institute matrimonial litigation. Children from a previous marriage are the subject matter. ❖ Consequences if no consent obtained? Effect against 3rd Parties ▪ Cannot be challenged by 3rd party for want of consent; ▪ Section 17(3) However, this section provides for the possibility of an order awarding costs against a spouse which instituted or defended legal proceedings without the required consent. Costs to be recovered from separate estate of spouse. Court may order that costs be recovered from separate estate of spouse. If the costs are recovered from the joint estate it may result in an adjustment upon division. Termination of Overview (NB) Community of ❖ Ex parte Menzies et Uxor Property Termination of Community of Property occurs by: ▪ Death of one or both spouses ▪ Divorce ▪ An order for division in terms of section 20 Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  11 Pass and Prosper ▪ A change in the matrimonial property system in terms of section 21. Glossary of Overview Terms ❖ Tied Co-Ownership Type of ownership that spouses have in a marriage in community of property. Als undivided, indivisible half shares in property ❖ Free Co-Ownership Co-ownership that allows co-owners to sell of their half share in property. Can arise in a marriage out of community of property. ❖ Antenuptial Debts Debts that were incurred before the conclusion of the marriage. ❖ Postnuptial Debts Debts that were incurred after conclusion of the marriage. ❖ Corporeal Things Consisting of material objects. ❖ Incorporeal Things Not composed of matter, non-physical, intangible. ❖ Deed of Donation Document in terms of which one person makes a donation to another. ❖ Patrimonial Damages Damages that can be assessed in monetary terms. ❖ Satisfaction Non-patrimonial damages, for example relating to pain and suffering, loss of amenities of life, loss of reputation. ❖ Delictual Debts A debt that arises out of the commission of a delict, for example, if X negligently caused an accident in which Y is injured, X will incur a delict debt towards Y. ❖ Concurrent Administration The way in which the joint estate of spouses in a Marriage in Community of Property are managed. Has two facets: ▪ Equal/independent administration that allows a spouse to act independently from the other spouse. ▪ Joint administration that limits the capacity to act of both spouses. Marais v Overview Makhoza Case ❖ Facts Mr. and Mrs. Broodie were married and had children. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  12 Pass and Prosper Mr. Broodie would later enter a relationship with a second woman (Ms. Ledwaba) with whom he’d have 2 more children. Ms. Ledwaba and Mr. Broodie would marry by customary rights and she was under the impression that Mr. and Mrs. Broodie were married in the same fashion (when really Mr. and Mrs. Broodie were married by civil rights. The resulting customary marriage was thus, invalid. Mr. Broodie then transferred 75% of his ownership in a Closed Corporation to Ms. Ledwaba and his two children from that relationship, without consulting Mrs. Broodie and asking her permission. Mrs. Broodie, upon Mr.Broodie’s death, was then appointed as the executor and applied to have the transfer set aside for lack of consent. The High Court dismissed the application, on the grounds that transfer was permitted in terms of section 15(9)(a) of the MPA. This was appealed to the Supreme Court of Appeal but Mrs. Broodie would die before the hearing and thus, the executors of both estates pursued the matter. ❖ Law Section 15(9) ▪ Spouse enters into transaction with 3rd party contrary to consent requirements. ▪ If the 3rd party does not know and cannot reasonably know that the transaction is contrary to consent requirements. ▪ Then the transaction is deemed to have been entered into WITH REQUIRED CONSENT. ❖ Ruling The court considered the facts. Firstly, they enquired into whether the donation disadvantaged Mrs. Broodie. They ruled that it certainly did as a percentage of 75% was clearly to the advantage of Ms. Ledwaba’s family at the expense of Mrs. Broodie and her children. Secondly, the court considered section 15(9)(b) in light of the facts. Ms.Ledwaba knew that Mr. Broodie was married and yet never specifically asked how they were married (customarily or civily). She also did not enquire whether he had asked permission to divest 75% of the Closed Corporation. A reasonable person in Ms. Ledwaba’s Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  13 Pass and Prosper position would have asked whether he’d asked permission. Her failure to do so was deemed unreasonable. In conclusion, the court found in favor of Mrs. Broodie’s estate. The appeal succeeded, and the transaction (75% transfer of ownership in the Closed Corporation) was set aside. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  14 Pass and Prosper Theme 4: Considering instance of Out of Community of Property Introduction Differences between In Community of Property and Out of Community of Property ❖ In community of property Joint estate ▪ All assets and debts before conclusion of the marriage and profit and loss during the existence of the union. Separate Estates ▪ Contains the excluded assets. ❖ Out of Community of Property including Profit and Loss Joint Estate ▪ Profit and loss during the existence of the marriage. Separate Estates ▪ Assets and debts before the conclusion of the marriage. ❖ Out of Community of Property excluding Profit and Loss and Excluding Accrual Separate Estates ▪ All assets and debts before conclusion of marriage and profit and loss during existence of marriage. ▪ Estates remain separate and are administered separately. ❖ Out of Community of Property Including the Accrual System Separate Estates ▪ All assets and debts before conclusion of marriage and profit and loss during existence of marriage. ▪ Estates remain separate and are administered separately for the duration of the marriage, but an accrual calculation is done at the dissolution of the marriage. The Application When does the Accrual System Apply? (NB) of the Accrual ❖ Section 2 of the MPA System Three Requirements: ▪ 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. ▪ 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. Odendaal v Odendaal Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  15 Pass and Prosper  The court was for the first time asked to interpret the meaning of ‘antenuptial contract.  The court concluded that the word not only refers to formal registered antenuptial contracts, but is wide enough to include informal and unregistered antenuptial contracts. This also includes oral informal antenuptial contracts and not only unregistered written antenuptial contracts. Where community of property and community of profit and loss are both excluded, that means accrual automatically applies. Thus, the third requirement is that accrual must not be expressly excluded. Accrual must be expressly excluded to avoid its automatic application and this does not mean that it has to be in writing but merely that there is no doubt between the spouses that they wanted to exclude the accrual system. ❖ Section 3(1) of MPA provides that: At dissolution of a marriage subject to the accrual system, by divorce or by death of one or both of the spouses, the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, or his estate if he is deceased, acquires a claim against the other spouse or his estate for an amount equal to half of the difference between the accrual of the respective estates of the spouses. It provides (as a simple summary): ▪ At dissolution of the marriage ▪ The spouse whose estate shows no accrual or a smaller accrual ▪ Such spouse acquires a claim against other spouse with the larger accrual ▪ For an amount equal to half the difference between the accrual of the respective estates. ❖ Section 3(2) of the MPA General ▪ The accrual claim only arises at the dissolution of the marriage and during the subsistence of the marriage, this right is not transferable or liable to attachment, and does not form part of the insolvent estate of a spouse. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  16 Pass and Prosper The right to claim in terms of the accrual system ▪ remains merely a possible contingent right during the marriage. ▪ The right only becomes vested at dissolution. Calculation of Overview (NB! WILL GET ASKED IN TEST) the Accrual of ❖ The 5 Steps the Respective Calculate net commencement values of respective Estates estates. Calculate net end values of respective estates. Calculate accrual of respective estates. Calculate the difference between accrual of respective estates. Divide the difference in half ❖ The General Rule Section 4(1) of the MPA ▪ The accrual of the estate of a spouse is the amount by which the net value of the estate at the dissolution of the marriage (end value) exceeds the net value of the estate at the conclusion of that marriage (the commencement value). The Process (NB FOR APPLICATION) ❖ Calculate Net Commencement Values (Step 1) General ▪ Commencement value is ordinarily declared in the antenuptial contract but can also be declared in a statement made before or within six months after the conclusion of the marriage and signed by the other spouse. Deemed as Zero ▪ Commencement value is deemed to be nil (zero) if: Commencement value was not declared in the antenuptial contact and the contrary is not proven. The liabilities/debts of the spouse exceeds his/her assets. Thus, it is clear that you cannot have a negative value. Section 6(3) ▪ Interpretation of section 6(3) of the MPA Presents a problem: Meaning of Prima Facie proof  Olivier v Olivier (NB) Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  17 Pass and Prosper The court concluded that the prima facie amount is an absolute and final indication which amounts to conclusive proof. Under this judgement, one of the spouses cannot at dissolution attempt to prove a higher commencement value. According to this judgment the commencement values can only be disputed on the common law grounds of: ▪ Misrepresentation ▪ Duress ▪ Undue Influence ▪ Rectification The court further ruled that it was not the legislature’s intention to abolish these common law principles with the enactment section 6(3). The court held that it is only with regard to third parties who are not parties to the contract that the declared commencement values should be regarded as prima facie proof. Therefore, it is absolute between the parties to the marriage and rebuttable by 3rd parties.  Thomas v Thomas (NB) The court ruled that prima facie amount can be challenged and proven as incorrect by any interested party and not just third parties.  TN v NN and Others This decision concurred with the decision in Thomas. The majority of the authority would thus seem to support the view that commencement values that were declared in a marriage contract can be disputed. Assets Excluded by Marriage Contract ▪ Assets that that have been excluded from the accrual system in terms of the marriage contract, as well as the assets replacing those assets, do not form party of the commencement value of a spouse’s estate. ▪ The MPA does not indicate how the income or the fruits of excluded assets should be dealt with. Conflicts as Result of an Antenuptial Contract Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  18 Pass and Prosper JK v RK; Bath v Bath; RM v BM ▪ Where one clause provides for an asset’s inclusion in the commencement value and another for its exclusion, courts have declared the antenuptial contract void and the marriage in community of property, as a result of an inability to sever those provisions from the contract. Adjustment In Terms of Inflation ▪ The commencement value is also adjusted according to the weighted average Consumer Price Index (CPI) as provided for in the Government Gazette. This simply means you must account for inflation. ▪ Calculated as: Commencement value multiplied by:  CPI Value (Month Dissolved) divided by CPI value (for month of conclusion of marriage). ▪ Example Facts:  Marriage concluded March 2002. CPI was 10.  Marriage dissolved March 2022. CPI was 100.  Commencement Value was 5’000. Calculation  100 divided by 10 = 10.  5’000 X 10 = 50’000 Conclusion  Commencement value = 50’000 adjusted for inflation. ❖ Calculate the Net End Values of the respective estates (Step 2) Satisfaction Amounts (Non-Patrimonial) excluded ▪ Any amount accrued by way of damages/satisfaction for non-patrimonial loss does not form part of the accrual. Section 5(1) exclusions ▪ Any inheritance, legacy or donation which accrues to a spouse during the subsistence of the union does not form part of the accrual except if spouses agreed otherwise in their marriage. ▪ A donation that a spouse received prior to the marriage does not fall under this section and may be excluded unless the antenuptial contract provides otherwise. Donations between Spouses ▪ Donations between spouses, except for a donation mortis cause (a donation that takes effect upon the Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  19 Pass and Prosper death of the spouse making the donation), are not taken into account, either as part of the estate of the donor or the estate of the spouse receiving it. Value of Assets ▪ Value of assets transferred into an alter ego (sham) trust may be taken into consideration for calculating accrual, if there is proof that the spouse in reality never gave up the management and control of the assets. AB v JB ▪ The Supreme Court of Appeal finally resolved the dispute regarding the moment upon which the net end value is to be determined for purposes of calculating the accrual claim. ▪ The SCA held that the time when a right comes into existence is determinative in calculating its value, and section 3 of the MPA is clear and unambiguous that a spouse acquires a right to claim in terms of the accrual system at the dissolution of a marriage. ▪ The court rejected the view that the date for determination was litis contestatio (when the litigation/divorce proceedings start). ▪ This suggests that since the claim for accrual only arises at the dissolution of the marriage, the claim for accrual can only be instituted once the divorce order is granted. Thus, this would lead to the need for two separate applications for divorce and accrual division. TN v NN and Others ▪ The court ruled that the two applications could be combined, and the accrual division is instead merely conditioned on the granting of the divorce order being granted. ❖ Calculate the Accrual of the Respective Estates (Step 3) Accrual = End Value – Commencement Value ❖ Calculate the Difference between the Accrual of the Respective Estates (Step 4) Higher Accrual – Lower Accrual = Difference ❖ Divide the Difference in half (Step 5) Claim is for half the difference. Claim is made by the person with the lower accrual value. Protection of Protection of the Spouse’s Right to Share in Accrual the Spouse ❖ Section 8(1) of the MPA In terms of this section of the MPA a court may on application by a spouse order the immediate division of the Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  20 Pass and Prosper accrual in accordance with the provisions of the accrual system or on such other basis as the court may deem just. To succeed it must be proved: ▪ The applicant’s right to share in the accrual at dissolution is seriously jeopardized by the conduct of the others spouse. ▪ That their right will probably be seriously jeopardized by the intended conduct of the other spouse; and ▪ That other persons will not be jeopardized by the application. The relief the court may grant: ▪ An unequal division of the accrual to compensate the prejudice spouse for loses already suffered. ▪ May also issue an order that an accrual system be replaced with a property system in terms of which community of property and community of profit and loss are excluded. Deferment of Satisfaction of Accrual Claim ❖ A court may on the application of a spouse against whom an accrual claim lies: Order that satisfaction of the claim be deferred (delated) on conditions Payment of interest; and The payment of instalments; and The delivery of transfer of specified assets, as the court may deem just. Marriage Overview Contracts ❖ General Spouses who wish to deviate from the default matrimonial property system must enter into an antenuptial contract to exclude community of property before they get married. Edelstein v Edelstein NO and Others ▪ The court confirmed that if spouses conclude a marriage without an antenuptial contract, the marriage is deemed to be in community of property. ❖ Antenuptial Contract vs Postnuptial Contract A marriage contract concluded before a marriage is considered an antenuptial contract. A marriage concluded after a marriage is considered a postnuptial contract. Unless indicated otherwise, ‘marriage contract’ as a term is a reference to both antenuptial and postnuptial contracts. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  21 Pass and Prosper Content of Marriage Contracts ❖ Generally Spouses are free to include any provision that is not contrary to the law, good morals or the nature of a marriage. ❖ Donations Section 22 MPA ▪ Donations are permissible and remove the common law prohibition on them, and the donations no longer need to be made in the marriage contract to be valid and enforceable. Including donations in marriage contract has certain advantages such as: ▪ Protecting the donation against attachment by creditors of the other spouse in case of insolvency. ▪ It is deemed a patrimonial benefit and as such may be forfeited under suitable circumstances. ▪ It will ensure that the donation is enforceable. ❖ Donations Subject to Conditions and/or Time Clauses Generally ▪ A donation may be made subject to a suspensive condition such as the birth of the couple’s first children. ▪ A donation may also be subject to a time clause of a certain amount of years after being married and remaining married. ▪ A donation may also be subjected to a resolutive condition, with the effect that the other party gets the donation but it reverts back to the donator when the condition is fulfilled. Cumming v Cumming ▪ One party donated a house to the other party. ▪ The court found that a reversionary clause making divorce the resolutive condition is not in conflict with public policy, as it will not necessarily lead to the breakdown of the marriage ❖ Other Popular Clauses Succession Clauses Matrimonial Property Clauses Requirements for Enforceable Marriage Contracts (NB) ❖ General Requirements for Marriage Contracts Consensus Capacity to Act Lawfulness Prescribed Formalities Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  22 Pass and Prosper Possibility of performance ❖ Antenuptial Contracts Requirements for Execution and Registration ▪ Section 87 Deeds Registries Act Attested by a notary Registered in a deeds registry within 3 months after the date of its execution. ▪ Section 87(2) If the antenuptial contract is executed outside the Republic:  Attested by Notary  Compliant with law of the country in which it is executed  Registered within 6 months in a deeds registry after the date of its execution. ▪ Section 88 A court can under certain circumstances allow an antenuptial contract to be registered after the conclusion of the marriage provided the requirements prescribed in this section have been met. Registered vs Unregistered Antenuptial Contracts ▪ Ex parte Spinazze (NB) An antenuptial contract which is not registered is of no force or effect against any person who is not a party thereto. The court explained that the effect of registration is to give notice to the world of the existence of the antenuptial contract and thereby bind persons who are not parties thereto, including creditors. An unregistered antenuptial contract is not enforceable against third parties but remains enforceable between the parties (inter se). ❖ Postnuptial Contracts Two different kinds of Postnuptial Contracts ▪ A postnuptial contract altering the property system of the spouses; and ▪ A postnuptial contract regulating the future property system of a husband’s polygynous customary marriages. Those altering the property system ▪ Section 21(1) Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  23 Pass and Prosper Applies to civil marriages and civil unions alongside section 7(5) of the RCMA for monogamous customary marriages. ▪ Section 7(4) of the RCMA Provides for alternation of the property system of monogamous and polygynous customary marriages concluded before the commencement of the Act. ▪ Section 21 – Voluntary Applications for Alteration Spouses must make a joint application; and Sound reasons must be given for the application.  Ex Parte Engelbrecht et Uxor Sound reasons can be described as facts that are convincing, valid and anchored to reality. The creditors of the spouses must have received sufficient notice of the application for change. No other person must be prejudiced by the proposed change. ▪ Retrospective effect of alteration An order in terms of section 21(1) may authorize spouses to enter into a notarial contract by which the ‘future’ matrimonial property system is regulated. However, the question is what “future” actually means. Ex parte Kros and Another  The word ‘future’ could simply be seen as another word for ‘new’, making a change with retrospective effect possible. Ex parte Oosthuizen and Another  The court held that the word “future” excludes the possibility of changing a matrimonial property system with retrospective effect. Ex parte Burger  If seeking to include the accrual system, it must run from the conclusion of the marriage and thus, it must have retrospective effect. Extra-judicial/informal change of property system ▪ There is still a difference between antenuptial and postnuptial contracts. An unregistered antenuptial contract for example is still enforceable inter se but an unregistered postnuptial contract is not. ▪ Honey v Honey Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  24 Pass and Prosper The court had to assess whether or not spouses can change their property system informally/extra- judicially. Held:  They must use procedure provided in section 21.  Should the parties attempt to change in an informal manner, the change is invalid. Comparison to Ex parte Spinazze  This shows that postnuptial contracts are different to antenuptial contracts where they are unregistered/informal.  They are not only unenforceable against 3rd parties but are also not enforceable between the parties to the marriage. Interpretation of Marriage Contracts ❖ General Marriage contracts are interpreted by applying the same interpretation rules that generally apply to ordinary contracts. The intentions of the parties are gathered from the wording of the contract. Thus, legal consequences can be excluded by implication where not expressly excluded. However, the accrual system MUST be expressly excluded. Rectification of Marriage Contracts (NB) ❖ Definition Rectification is the act of correcting a mistake ❖ When it occurs It occurs when a contract does not reflect the true intention of the parties. ❖ Requirements The parties must bring an application for rectification of a marriage contract and prove 3 things to succeed: ▪ The marriage contract does not reflect the true intention of the spouses during execution. ▪ The spouses acted bona fide and did not contribute to the incorrect version. ▪ The application for rectification has been brought within a reasonable time after becoming aware of the mistake. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  25 Pass and Prosper Termination of a Marriage Contract ❖ Generally Marriage contracts do not necessarily automatically dissolve upon death or divorce (dissolution). Donations will remain valid and enforceable until the endowment has been fulfilled or revoked by a court of law. ❖ Termination (Finality) The marriage contract only terminates when: ▪ All terms have become irrelevant. ▪ All terms are fulfilled. ▪ By order of a court Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  26 Pass and Prosper Theme 5 – Dissolution and Consequences of Dissolution of Marriages Introduction Overview ❖ General The concept of the dissolution of marriages and the consequences of the dissolution of marriages as it relates to spouses, are two different concepts. ❖ The Divorce Act In the past, marriage fell under the sole jurisdiction of the church and divorce was impossible as a result until reformation occurred. However, on the basis of biblical texts the only grounds for divorce that were accepted were adultery and malicious desertion (as per Matthew 5:32 and 1 Corinthians 7:15). ▪ Note that in both these instances divorce is not required or encouraged but is merely a ground. ▪ Furthermore, where the desertion is malicious, it suggests from a reading of the biblical text that it had to be desertion by an unbeliever specifically. Common Law later introduced the grounds of incurable mental illness and habitual criminality as grounds. The Divorce Act finally replaced these earlier fault based systems and streamlined the process. Visser v Potgieter ▪ This case provides that divorce law exists to regulate divorce and its consequences. It does not exist to keep marriages alive or to motivate divorce. It is purely procedural in nature and provides a legal avenue. ❖ Application of Divorce Act It is fully applicable to civil marriages and civil unions. It is partially applicable to customary marriages. Women’s Legal Centre Trust ▪ Divorce Act also applies to Muslim marriages concluded in terms of Sharia law at 15 December 2014, and where legal proceedings have been instituted but not completed. Dissolution of General Information Marriages ❖ Dissolution occurs by: 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. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  27 Pass and Prosper Grounds for Divorce ❖ Section 3 of the Divorce Act The irretrievable breakdown of the marriage as contemplated in section 4; or The mental illness of a spouse as contemplated in section 5(1); or The continuous unconsciousness of a spouse as contemplated in section 5(2). ❖ Section 8(1) of the RCMA (only 1 Ground) The irretrievable breakdown of the marriage is the only ground for divorce in terms of a customary marriage. ❖ Jurisdiction “Court” for the purposes of the Divorce Act means: ▪ Any High Court; or ▪ A Court for a regional division. A court has jurisdiction if the parties or either of the parties is: ▪ Domiciled in the are of the court’s jurisdiction on the date of the action being instituted; or ▪ Ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date. Irretrievable Breakdown of the Marriage (NB) ❖ Section 4(1) of the Divorce Act and Section 8(2) of the RCMA (1) A court may grant a decree of divorce on the ground of the irretrievable breakdown of the marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of restoration of a normal marriage relationship between them. (2) The court may accept the evidence subject to subsection (1) that: ▪ (a) 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. ▪ (b) That the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continued married relationship; or ▪ (c) That the defendant has in terms of a sentence of a court been declared a habitual criminal and is Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  28 Pass and Prosper undergoing imprisonment as a result of such sentence, as proof of the irretrievable breakdown of a marriage. (3) If it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceeding in order that the parties may attempt a reconciliation. (4) Where a divorce action which is not defended is postponed in terms of subsection (3), the court may direct that the action be tried de novo (which means “anew” or “from the start”), on the date of resumption thereof, by any other judge of the court concerned. ❖ Two Characteristics of Irretrievable Breakdown (NB) The relationship between the spouses is no longer normal; and There is no reasonable prosect of the restoration of a normal relationship. ▪ Schwartz v Schwartz The SCA has proposed guidelines for determining where there is no reasonable prospect of restoration. “In determining whether a marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties it is important to have regard to what has happened in the past, such as the history of the relationship to the date of trial, and also the present attitude of the parties to the marriage relationship as revealed by the evidence at trial.” ▪ Naidoo v Naidoo This case refers to the enquiry into the history of the marriage relationship as the objective investigation and the enquiry into the present or current relationship between the parties as the subjective investigation. The plaintiff’s (person applying for divorce) obviously subjectively feels that that the marriage has broken down but this is insufficient. It must be objectively proven. ▪ Swart v Swart “I am thus of the opinion that it can be said that breakdown is present when one of the spouses no longer wishes to continue the marriage relationship Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  29 Pass and Prosper with the other. The question of the reason will then arise and may pertain to the conduct of both parties, and will thus be considered whether such conduct has an effect on the eventual court order.” ▪ Coetzee v Coetzee The court argued that for irretrievable breakdown to be present, a change in the pattern of the marriage relationship should have taken place. This finding is considered incorrect, because then if the marriage was unhappy from the start then there could be no irretrievable breakdown. Section 4(2), as cited above, provides for three instances where irretrievable breakdown is presumed. ❖ Section 5(1) – Mental Illness The court may grant a decree of divorce if it is satisfied: ▪ (1) That the defendant in terms of the Mental Health Care Act 17 of 2002: Has been admitted as a patient at an institution in terms of a reception order. Is being detained as a State patient at an institution or other placed specified by the Minister of Correctional Services. Is being detained as a mentally ill convicted prisoner at an institution. ▪ (2) And that he/she has, for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally; and ▪ (3) After having heard the evidence of at least two psychiatrists, of whom one must have been appointed by the court, that there is no reasonable prospect that he/she will be cured of his mental illness. ❖ Section 5(2) – Continuous Unconsciousness The court may grant a decree of divorce if satisfied: ▪ (1) That the defendant is by reason of a physical disorder in a state of continuous unconsciousness; and ▪ (2) That the defendant’s unconsciousness has laste for a continuous period of at least 6 months immediately prior to the institution of the divorce action; and ▪ (3) After having heard the evidence of at least two medical practitioners, of whom one must be a neurologist or a neurosurgeon appointed by the court, Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  30 Pass and Prosper that there is no reasonable prospect that the defendant will regain consciousness. ❖ Special Arrangements in terms of Section 5(1) and (2) The appointment of a legal practitioner for the mentally ill or unconscious defendant. Court is empowered to order the plaintiff to make security as per section 5(4). The Court is prohibited from making an order for forfeiture in terms of section 9(2). The court may make an order for maintenance in terms of section 7. ❖ Relationship between Section 4 and 5 of the Divorce Act (NB) The Conflict ▪ The issue concerns whether you can get divorced under section 4 if the thing that caused the irretrievable breakdown was the mental illness or the unconsciousness. Authority Supporting ▪ Dickinson v Dickinson According to the ratio decidendi of the court, divorce proceedings can be instituted in terms of section 4 even where the defendant is mentally ill because the only requirement is to prove irretrievable breakdown of the marriage, regardless of the cause. Mental illness can serve as an objective fact. This case has received support in the obiter dicta of:  Krige v Smit; and  Ott v Raubenheimer This would by implication render section 5 meaningless. Authority Rejecting ▪ Smit v Smit The court disagreed with the decision in Dickinson. In obiter dictum, the court observed that a plaintiff is not free to circumvent, by his choice of procedure, the protective measures created for the mentally ill and unconscious. Thus, section 4 can only be used to prove irretrievable breakdown where a different state of illness is at play. ▪ Van Loggerenberg (Academic Writer) Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  31 Pass and Prosper Suggests that the present difference of opinion can only be resolved by means of a proper amendment to the Divorce Act. Defences Against an Action for Divorce (NB) ❖ Defences include: Spouse can prove that there is no irretrievable breakdown or that the requirements for mental illness and unconsciousness are not met. 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. If the marriage is voidable as annulment is then the correct procedure. If the marriage is void, since divorce is only for valid unions. Refusal of Decrees of Divorce ❖ Section 5A 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