FMR Semester Test 2 Notes PDF

FMR SEMESTER TEST 2 NOTES Variable Consequences of Marriage Introduction variable consequence Primarily relate to the financial or patrimonial (proprietary) consequences of marriage ⇒ In Community of Property (ICOP) If spouses wish to deviate from ICOP ⇒ antenuptial contract to regulate patrimonia...

FMR SEMESTER TEST 2 NOTES Variable Consequences of Marriage Introduction variable consequence Primarily relate to the financial or patrimonial (proprietary) consequences of marriage ⇒ In Community of Property (ICOP) If spouses wish to deviate from ICOP ⇒ antenuptial contract to regulate patrimonial The default property system consequences That is why they are VARIABLE → You can change your patrimonial consequences by antenuptial contract Patrimonial consequences of civil marriages Governed by the Matrimonial Property Act 88 of 1984 This Act also requlates the patrimonial consequences of civil unions Matrimonial property is foreign to customary law → African property is managed for the benefit of the family as a whole In SA → Patrimonial (proprietary) consequences of customary marriages are governed by the RCMA 5.2 proprietary consequences of customary marriages The Ramuhovi case and the Gumede case have declared some provisions of the RCMA unconstitutional FMR SEMESTER TEST 2 NOTES 1 These judgements resulted in the amendment of section 7 of the RCMA on 1 June 2021 5.2.1 Monogamous customary marriages Section 7(2) of the RCMA 💡 a customary marriage in which a spouse is not a partner in any other existing cust marriage → is ICOP (unless antenuptial contract states otherwise) Partrimonial consequences of civil marriages and de facto cust marriages are the same Regardless of before or after RCMA 5.2.2 Polygynous customary marriages before and after RCMA different BEFORE The RCMA Section 7(1) FMR SEMESTER TEST 2 NOTES 2 💡 1)(a) The proprietary consequences of a customary marriage in which a person is a spouse in more than one customary marriage, and which was entered into before the commencement of this Act, [continue to be governed by customary law] are that the spouses in such a marriage have joint and equal – (i) ownership and other rights; and (ii) rights of management and control, over marital property. (b) The rights contemplated in paragraph (a) must be exercised – (i) in respect of all house property, by the husband and wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and (ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses. (c) Each spouse retains exclusive rights over his or her personal property. (d) For purposes of this subsection, “marital property”, “house property”, “family property” and “personal property” have the meaning ascribed to them in customary law; and This amendment reflects the Rhamuhovi case But what does “marital property” mean? The meaning may differ depending on if official or living customary law is used to interpret it Since there is a distinction between before and after → is that not in violation of equality? AFTER the RCMA Section 7(6) FMR SEMESTER TEST 2 NOTES 3 💡 if a husband wants to conclude a further customary marriage → must apply to court for approval of a written contract which will regulate the future property system of his customary marriage MN v MM See case attached if entered into without compliance of S7(6) → the marriage remains valid You cannot have two joint estates as they will by nature be separate 5.2.3 → to summarize Monogamous before or after ⇒ same patrimonial consequences ICOP unless antenuptial contract Polygynous before affords the wives co-management capacity in relation to all marital property with hubby co-ownership of property Polgynous after have to comply with S7(6) of RCMA is first marriage (monog) is ICOP and second is not concluded in compliance with S7(6) → the second is OOCOP If complied with → then marriage contract that the court has approved will determine property systems of future marriages 5.3 Community of property 5.3.1 Presumption of community of property FMR SEMESTER TEST 2 NOTES 4 💡 There is a rebuttable presumption that all marriages are by default ICOP May be rebutted under the following circumstances : 1. Valid antenuptial / postnuptial contract excludes community of property 2. Law of Matrimonial Domicile indicates a different default property regime → Not governed by SA law 3. If the marriage is a Muslim marriage → (pending WLCT case → all Muslim marriages should be treated as OOCOP) 4. It is no longer the case that Black persons in a civil marriage (concluded before December 2 1988) are deemed OOCOP used to be deemed such but was declared unconstitutional in the Sithole case court declared all marriages of Black persons concluded under s22(6) of the BAA before 1988 amendment → deemed ICOP 5.3.2 Legal nature of ownership of joint property Spouses married ICOP → assets acquired before and after conclusion of marriage are merged into one joint estate Tied co-ownership Joint estate belongs to spouses in undivided and indivisible half-shares for it to be tied co-ownership there needs to be a particular legal relationship between the co-owners EG marriage ICOP or an association that is without a legal personality Otherwise it’s just free co-ownership → where the only legal relationship is the fact that the parties are co-owners The legal relationship then determines the way the entitlements of ownership are exercised FMR SEMESTER TEST 2 NOTES 5 One type of ownership can be changed to another when spouses alter their property system 5.3.3 Content of joint estate Joint assets Assets are both corporeal (Material) And incorporeal things (rights or claims with a positive monetary value) EG the right of occupation as seen in Moremi v Moremi The pension interest of a spouse These things form part of the joint estate Assets that do not form part of joint estate Asset Explanation Assets excluded in antenuptial/postnuptial contract - Spouses may want ICOP but wish to exclude certain assets from joint estate there are separate/ private estates created alongside the joint estate Assets excluded by deed of donation or last will and testament - Donation from donor with the condition that asset will fall outside the joint estate of recipient ICOP Satisfaction and patrimonial damages for personal injuries ITO section18 of the MPA - Claims arise as result of a delict against a person (spouse ICOP) - Wrongful and blameworthy conduct that causes harm to another person - 2 kinds of claims : Patrimonial damages and non-patrimonial damages ⇒ Patrimonial damages Calculated in Rand and Cent, including medical costs, loss of income and cost of repairs for the vehicle(asset sustaining damage) Non patrimonial damages ⇒ also called satisfaction Claims for pain and suffering, disfigurement, loss of amenities of life and injury to personality Section 18(a) MPA FMR SEMESTER TEST 2 NOTES ⇒ for 3rd party damages 6 💡 Section 18(a) provides that satisfaction (but not damages) received by a spouse married ICOP from a 3rd party → does not fall into the joint estate → becomes the separate property of that spouse (includes civil partner) Section 18(b) MPA for interspousal delict 💡 Spouse may recover satisfaction and damages in respect of bodily injuries from spouse→ becomes the separate estate of the injured spouse Limited to bodily injuries spouse A can claim from spouse B therefore cannot claim for damages to damaged asset EG the car Debts and liabilities continuation… assets replacing excluded assets debts / liabilities when excluded assets are replaced or sold → substitute assets or proceeds also DO NOT form part of the joint estate → however the fruits of these assets (interest or rent) do fall into the joint estate after collection - Spouses ICOP become co-debtors of all debts and liabilities - 2 questions arise → which estates can be attached → which spouses can be sued Joint debts debts that relate to assets in the joint estate they can be recovered from the separate estates of both spouses AND the joint estate (in no particular order) This is regardless of which spouse incurred the debt Section 19 of the MPA FMR SEMESTER TEST 2 NOTES 7 💡 When a spouse is liable for the payment of damages, including damages for non-patrimonial loss, by reason of a delict committed by him or when a contribution is recoverable from a spouse under the Apportionment of Damages Act, 1956 (Act No. 34 of 1956), such damages or contribution and any costs awarded against him are recoverable from the separate property, if any, of that spouse, and only in so far as he has no separate property, from the joint estate: Provided that in so far as such damages, contribution or costs have been recovered from the joint estate, an adjustment shall, upon the division of the joint estate, be effected in favour of the other spouse or his estate, as the case may be. What this means: ⇒ when a spouse commits a delict against a 3rd party the debts and damages must be collected in a specific order ( This also applies to delicts committed by one spouse against another) ⇒ The delictual debt must first be recovered from the separate estate of the responsible spouse (if such estate exists) Only if the damages exceeds the amount within the separate estate or if there is no separate estate → will the debt be recovered from the joint estate If the joint estate is used → then an adjustment will be made (for division of assets) UPON DISSOLUTION of the marriage in favor of the disadvantaged spouse who did not commit the delict Is is important to note that private debt of one spouse can never be recovered from the separate estate of the other spouse 5.3.4 Spouses capacity to act Section 11 MPA FMR SEMESTER TEST 2 NOTES 8 💡 Abolition of marital power (1) The common law rule in terms of which a husband obtains the marital power over the person and property of his wife is hereby repealed. (2) Any marital power which a husband has over the person and property of his wife immediately prior to the date of coming into operation of this subsection, is hereby abolished. (3) The provisions of Chapter III shall apply to every marriage in community of property irrespective of the date on which such marriage was entered into (4) The abolition of the marital power by subsection (2) shall not affect the legal consequences of any act done or omission or fact existing before such abolition Replaced marital power with equal administration Section 14 MPA 💡 Equal powers of spouses married in community Subject to the provisions of this Chapter, a wife in a marriage in community of property has the same powers with regard to the disposal of the assets of the joint estate, the contracting of debts which lie against the joint estate, and the management of the joint estate as those which a husband in such a marriage had immediately before the commencement of this Act Marriages ICOP are given equal powers with regard to disposal of the assets, the contracting of debts and the management of the joint estate FMR SEMESTER TEST 2 NOTES 9 The nature of equal administration The aim ⇒ to protect the shared interest of the spouses in the joint estate Thus S15 of the MPA LIMITS THE CAPACITY TO ACT OF BOTH SPOUSES equally → seen in the requirement of their need to OBTAIN EACH OTHERS CONSENT to perform certain juristic acts with regard to the joint estate Kotze NO v Oosthuizen Court held consent requirements only apply between living spouses in respect of the joint estate of spouses married ICOP Consent requirements MPS requires different forms of consent The bigger the risk to the one spouses shared interest → the stricter the consent requirement 1. Prior written consent attested by two competent witnesses a. When a spouse enters into a transaction to transfer ownership of immovable property co-owned by the spouses (eg their matrimonial home) to a third party b. when a spouse wants to register a mortgage bond over the property c. when a spouse intends to stand surety for the debts of a third party ratification is not possible here → so written consent attested by witnesses must be obtained prior to entering into transaction Section 15(6) of the MPA 💡 The provisions of paragraphs (b), (c), (f), (g) and (h) of subsection (2) do not apply where an act contemplated in those paragraphs is performed by a spouse in the ordinary course of his profession, trade or business. Consent is thus not necessary for for surety if this is provided in the ordinary course of the spouse standing surety’s profession FMR SEMESTER TEST 2 NOTES 10 De Goede case if the transaction is normally performed between business people → it qualifies as “in the ordinary course” 1. Written consent attested by two competent witnesses a. When a spouse wants to sign a contract to sell immovable property belonging to the spouses → to a third party A contract does not transfer ownership to the purchaser → it merely gives the purchaser the right to claim transfer of the ownership Thus holds less risk Ratification is permissible → and consent may also be obtained after the transaction → Thus prior consent is not required Consent is NOT required if transaction is performed by a spouse in the ordinary course of his profession, trade, or business If spouse married ICOP → and is an estate agent → wants to sell the matrimonial home → to 3rd party → spouse can sign the deed of sale without the other spouses consent → but cannot transfer ownership (without first obtaining the prior written attested consent 2. written consent a. When a spouse wants to sell shares of any other asset that which is mainly held as an investment → to a 3rd party ratification for the transactions that need written consent is permissible consent can also be obtained after the transaction ⇒ thus General consent is permissible consent it not required if it is in the ordinary course of profession, trade, or business 3. Oral (informal) and tacit consent a. ITO S15(3) these acts may not be performed without the consent of the other spouse. FMR SEMESTER TEST 2 NOTES 11 i. Tacit consent is sufficient → as manner and form of consent is not specified An example of this kind of transaction is the sale of furniture or other effects of the common household 4. Donations made by spouse to third party a. A spouse may make donations if it does not or probably will not unreasonably prejudice the interest of the other spouse in the joint estate b. S15(8) of the MPA lists donation factors to consider 💡 In determining whether a donation or alienation contemplated in subsection (3) (c) does not or probably will not unreasonably prejudice the interest of the other spouse in the joint estate, the court shall have regard to 1) the value of the property donated or alienated, 2) the reason for the donation or alienation, 3) the financial and social standing of the spouses, 4) their standard of living and any other factor which in the opinion of the court should be taken into account. 5. Transactions for which no consent is required a. No consent required if not mentioned in the Act Consequences if consent requirements are not fulfilled the MPA is silent on consequences of transactions without required consent Lydenburg Passenger Services case Court held an act contrary to consent in S15(2) and (3) → is void Ownership does not pass and the asset may be vindicated (reclaimed) However if 3rd party acted bona fide → transaction is valid and enforceable Protective Measures 1. Protection of third parties: section 15(9)(a) of the MPA FMR SEMESTER TEST 2 NOTES 12 A spouse enters into a contract with a third party.. The third party does not know and cannot reasonably know that the transaction is contrary to the consent requirements → Then it is deemed to have been entered into with the required consent The third party is protected → transaction is deemed valid and enforceable To test “ought to reasonably know” → one can look at The objective reasonable man test Subjective adequate inquiry test Section 15(9)(a) can only be raised by bona fide 3rd party → cannot be raised as a defense by the spouse 💡 When a spouse enters into a transaction with a person contrary to the provisions of subsection (2) or (3) of this section, or an order under section 16 (2), and (a) that person does not know and cannot reasonably know that the transaction is being entered into contrary to those provisions or that order, it is deemed that the transaction concerned has been entered into with the consent required in terms of the said subsection (2) or (3), or while the power concerned of the spouse has not been suspended, as the case may be; 2. Protection of spouses against each other The spouse who thus did not consent is prejudiced There are measures of redress in the MPA: Section 15(9)(b) spouse knows or ought reasonably to know they they will not receive consent from the other spouse FMR SEMESTER TEST 2 NOTES 13 And the joint estate suffers a loss an adjustment will be effected in favor of the disadvantaged spouse → upon the division of the joint estate Joint estate can also be divided earlier by order of the court So if Z sells furniture without X’s approval → and the loss is R8000 X will have a claim to R4000 ITO section 15(9)(b) : 💡 that spouse knows or ought reasonably to know that he will probably not obtain the consent required in terms of the said subsection (2) or (3), or that the power concerned has been suspended, as the case may be, and the joint estate suffers a loss as a result of that transaction, an adjustment shall be effected in favour of the other spouse upon the division of the joint estate. Section 16(1) Court give spouse permission to enter into a transaction without spouses consent Two cases where possible Spouse withholds consent unreasonably Consent cannot be obtained and good reason exists not to require it FMR SEMESTER TEST 2 NOTES 14 💡 When a spouse withholds the consent required in terms of subsection (2) or (3) of section 15, or section 17, or when that consent can for any other reason not be obtained, a court may on the application of the other spouse give him leave to enter into the transaction without the required consent if it is satisfied, in the case where the consent is withheld, that such withholding is unreasonable or, in any other case, that there is good reason to dispense with the consent. Section 16(2) To protect the interest of a spouse in the joint estate → court may suspend any power which the other spouse may exercise For a definite or indefinite period of time 💡 If a court is satisfied that it is essential for the protection of the interest of a spouse in the joint estate, it may on the application of that spouse suspend for a definite or an indefinite period any power which the other spouse may exercise under this Chapter. Section 20(1) spouse can under this section apply for immediate division of the joint estate during the existence of the marriage Application will be successful only if: Spouses interest are seriously being prejudiced by the conduct of the other spouse FMR SEMESTER TEST 2 NOTES 15 Spouses interest will probably be seriously prejudiced by the conduct of the other spouse And other persons are not prejudiced by the division 💡 A court may on the application of a spouse, if it is satisfied that the interest of that spouse in the joint estate is being or will probably be seriously prejudiced by the conduct or proposed conduct of the other spouse, and that other persons will not be prejudiced thereby, order the immediate division of the joint estate in equal shares or on such other basis as the court may deem just. 5.3.5 → Spouses capacity to litigate Consent requirements for capacity to litigate 1. General rule Section 17(1) of the MPA 💡 A spouse married in community of property shall not without the written consent of the other spouse institute legal proceedings against another person or defend legal proceedings instituted by another person, except legal proceedings (a) in respect of his separate property; (b) for the recovery of damages, other than damages for patrimonial loss, by reason of the commission of a delict against him; (c) in respect of a matter relating to his profession, trade or business. If they are married ICOP FMR SEMESTER TEST 2 NOTES 16 may not institute legal proceedings against another person OR defend legal proceedings instituted by another person → without the written consent of the other spouse 2. Exceptions to the general rule → seen in S17(1) above (a) in respect of his separate property; (b) for the recovery of damages, other than damages for patrimonial loss, by reason of the commission of a delict against him; (c) in respect of a matter relating to his profession, trade or business. A spouse may also institute Matrimonial Litigation (divorce proceedings) or litigation concerning Children from a previous marriage → without the written consent of his or her spouse This derives from the common law and is not mentioned in S17(1) A spouse also does not need consent when the court grants substitute consent → or when the power of the other spouse has been suspended 3. Third parties and spouses capacity to litigate The validity of legal proceedings instituted or defended by a spouse cannot be challenged on the ground of want consent Section 17(3) 💡 If costs are awarded against a spouse in legal proceedings instituted or defended by him without the consent required in terms of subsection (1), the court may, with due regard to the interest of the other spouse in the joint estate and the reason for the want of consent, order that those costs be recovered from the separate property, if any, of the firstmentioned spouse and, in so far as those costs cannot be so recovered, that they be recovered from the joint estate, in which case the court may order that upon the division of the joint estate an adjustment shall be effected in favour of the other spouse. FMR SEMESTER TEST 2 NOTES 17 An order awarding costs → against the spouse who defended or initiated without required consent The cost may be recovered from the separate property if any If the separate estate cannot cover costs → court may order for an adjustment This provision was meant as a deterrent to prevent spouses from instituting and defending legal proceedings without the consent of the other spouse 4. Surrender and sequestration of joint estate: section 17(4) of the MPA an application for the Surrender and sequestration of joint estate must → as a general rule → be made by both spouses 5. Liability of spouses for debts incurred during the existence of the marriage Debts other than delictual debts Spouse who incurred may be sued for debts OR spouses may be jointly sued for debts Debts incurred for household necessaries → for the joint household → spouses may be sued jointly or severally Delictual debts Spouse who committed delict may be sued for debts arising from delict No consequence if the debt was incurred before or after conclusion of marriage Done ITO section 19 MPA Termination of community of property Ex parte Menzies et Uxor Confirmed that Community of property may dissolved in the following ways: 1. The death of the spouses 2. divorce 3. order of division ITO S20 of the MPA FMR SEMESTER TEST 2 NOTES 18 4. Change in the property system ITO S21(1) of MPA or S7(4)(a) and 7(5) of the RCMA 5.4 Marriage Contracts 5.4.1 General Edelstein v Edelstein If spouses conclude a marriage without an antenuptial contract → it is deemed ICOP Antenuptial contract Before the conclusion of the marriage Postnuptial During the existence of the marriage 5.4.2 Content of marriage contracts General Spouses free to include any provision in their marriage contract that is not contrary to The law Good morals Nature of the marriage Donations Reasons for donations in a marriage ⇒ In the past donations between spouses were prohibited at common law unless they were contained in a marriage contract ❗since section 22 of the MPA removed this common law prohibition ❗ → no longer necessary for donations to be made in a marriage contract for it to be valid and enforceable IF donation is included FMR SEMESTER TEST 2 NOTES ⇒ it can have the following advantages 19 In the case of insolvency → may serve to protect the donation against attatchment by the creditors May be forfeited under suitable circumstances → as it is deemed a patrimonial benefit It will ensure that the donation is enforceable Donations subject to conditions and/or time clauses Suspensive condition → Donation is suspended or delayed until the happening of a future event → eg at the birth of a couples first child Resolutive condition → known as a reversionary clause → donation immediately takes effect but will revert back to the donor upon fulfillment of the resolutive condition (such as divorce) Cumming v Cumming reversionary clauses making divorce the resolutive condition is not against public policy as it will not necessarily lead to the breakdown of the marriage 5.4.3 Requirements for enforceable marriage contracts general requirements for marriage contracts 1. Consensus a. contract is voidable if entered into under duress, undue influence, or intimidation 2. Capacity to act 3. formalities a. antenuptial contracts → absence of formalities → contract are enforceable between the parties only b. Postnuptial contracts FMR SEMESTER TEST 2 NOTES 20 → not enforceable between parties in the absence of formalities 4. physical and juridical execution 5. lawful Antenuptial contracts 1. requirements pertaining to execution and registration S86 OF THE DEEDS REGISTRIES ACT To be valid against a third party who is not a party to the contract → antenuptial conracts must be registered ITO the provisions of section 87 after the signing thereof S87 OF THE DEEDS REGISTRIES ACT antenuptial contract must be attested to by a notary → and registered in a deeds registry within 3 months after the date of it’s execution (wording V important here) S87(2) OF THE DEEDS REGISTRIES ACT antenuptial contracts executed outside of the Republic Must be attested to by a notary OR OTHERWISE entered into in accordance with the law of the place of it’s execution must be → registered in a deeds registry in the Republic within 6 months after the date of it’s execution S88 OF THE DEEDS ACT FMR SEMESTER TEST 2 NOTES 21 💡 Notwithstanding the provisions of sections 86 and 87 the court may, subject to such conditions as it may deem desirable, authorise postnuptial execution of a notarial contract having the effect of an antenuptial contract, if the terms thereof were agreed upon between the intended spouses before the marriage, and may order the registration, within a specified period, of any contract so executed. court can allow antenuptial contract to be registered after the conclusion of the marriage requirements above must be met Distinction between registered and unregistered antenuptial contracts Ex parte Spinazze an antenuptial contract that is nt registered “is of no force or effect against any person who is not a party thereto” The effect of the registration is to give notice to the world of the existence of the antenuptial contract Thus binding persons who are not parties thereto An unwritten or oral antenuptial contract is still valid and enforceable between the contracting spouses themselves Postnuptial contracts Concluded during the existence of the marriage 2 types one that alters the property system of the spouses one that regulates the future property systems f a husband’s polygynous customary marriages 1. Postnuptial contracts altering the property system of spouses provisions that provide for this (voluntary applications) FMR SEMESTER TEST 2 NOTES 22 Section 21(1) of the MPA Regulations applicable to civil marriages and civil unions together with S7(5) of the RCMA → regulates property systems of a monogamous customary marriage concluded AFTER the commencement of the RCMA Section 7(4) of the RCMA provides for the alterations of monogamous and polygynous customary marriages concluded BEFORE the commencement of the RCMA Requirements ITO the MPA and the equivalent section in the RCMA S21(1) MPA and S7(5) RCMA prescribe the following requirements : 1. spouses must jointly make application a. If deceased or refuses to consent → cannot be made ITO S21(1) 2. Sound reasons must be given for the change Ex parte Engelbrecht et Uxor sound reasons are “facts that are convincing, valid, and anchored in reality” Parties were mistaken > thought they only had to inform marriage officer of their intention to marry OOCOP Application to change was thus granted 3. Creditors of the spouses must have received sufficient notice of the application to change 4. No other person must be prejudiced by the change Retrospective effect of application term “future” has been debated when it comes to regulation of future matrimonial property system Ex parte Kros and Another could simply mean “new” FMR SEMESTER TEST 2 NOTES 23 Thus allowing for retrospective effect Oosthuizen and Another The word excludes possibility of retrospective effect of matrimonial property system 🎭 The position of retrospective change of ICOP to OOCOP is thus uncertain Ex parte Burger spouses who wish to include accrual system iin their matrimonial property system can only apply as from the date of conclusion of the marriage Spouses therefore have no choice but to introduce accrual with retrospective effect alteration of property system of customary marriages concluded before RCMA in terms of section 7(4) of the RCMA NB ❗ Section 7(4) of the RCMA FMR SEMESTER TEST 2 NOTES 24 💡 7(4)(a) Spouses in a cust marriage entered into before the comm. of the RCMA may apply to a court jointly for leave to change the matrimonial property system which applies to their marriage or marriages and the court may, if satisfied that i) there are sound reasons for proposed change ii) Sufficient written not9ie of the proposed change has been given to all creditors of the spouses for amounts exceeding R500 or such amount as may be determined by the Minister of Justice by notice in the Gazette iii) No other person will be prejudiced by the proposed change Order that the matrimonial property system applicable to such marriage or marriages will no longer apply and authorize the parties to such marriage or marriages to enter into a written contract ITO which the future of matrimonial property systems of their marriage or marriages will be regulated on conditions determined by the court Applies to marriages concluded BEFORE the RCMA Provides for monogamous and polygynous customary marriages Extra-judicial change of property system Make note of the distinction between antenuptial and post-nuptial Unregistered antenuptial contract, while not enforceable against third parties, is still enforceable between the spouses This does NOT APPLY to postnuptial contracts Can a spouse change their property systems informally - extrajudicially? NO - Not valid given that it MUST be a HC application → property system not changed FMR SEMESTER TEST 2 NOTES 25 Must use procedure provided in S21 Should parties attempt change in informal manner → the change is invalid Compare to the decision in EX PARTE SPINAZZE Based on the immutability principle Honey v Honey property system of a marriage cannot stante matrimonio (while the marriage is in existence) be altered Unless ito S21(1) MPA by court order Informal postnuptial contract is therefore also not enforceable between spouses themselves 2. Post nuptial contracts in terms of section 7(6) of the RCMA An application TO S7(6) of the RCMA is a compulsory statutory requirement It is required in all cases where a husband in an existing cust marriage wants to enter into another customary marriage after the comm. of the RCMA Hubby must obtain the courts approval if court did not approve and the property system of the first marriage is ICOP → the second marriage will be OOCOP with the exclusion of accrual MN v MM Non compliance with S7(6) will not effect the validity of the further marriage ratio decidendi : S7(6) does not relate to the requirements of a valid custoamary marriage The main aim of S7(6) is thus to ensure the property system of the subsequent marriage is JUST and EQUITABLE 5.4.4 Marriage contracts of Minors FMR SEMESTER TEST 2 NOTES 26 A minor may conclude a valid antenuptial contract with the required assistance Requirements 1. Minors own signature 2. Minor must be assisted by parents a. if they have guardianship Special rules apply WITHOUT NECESSARY CONSENT → COMPLETELY VOID → Common law presumption that no validity requirement may be missing Edelstein v Edelstein If no parents → Presiding officer of the Children’s court but supply consent S24(2) of MPA Applies where antenuptial contract and marriage was concluded without consent and marriage was not set aside It depends on whether the marriage was consented to or not Most of this is not of concern given that minors wont be able to get married ito the new Act 3. Sole guardianship → only one parent needs to consent 4. If consent of presiding officer is required → must also assist minor with conclusion of antenuptial contract 5. If HC has granted substitute consent → may order antenuptial contract to be executed many possibilities court may allow execution without minor signature may require signing without assistance may require signing with assistance Where required assistance is not obtained → FMR SEMESTER TEST 2 NOTES 27 Contract is null and void Only applies where civil or customary marriage has been concluded with required consent and the antenuptial contract has been concluded without assistance Section 24(2) of the MPA 💡 If such a marriage is not dissolved, the patrimonial consequences of the marriage are the same as if the minor were of age when the marriage was entered into and any antenuptial contract in terms of which the accrual system is included and which has been executed with a view to such a marriage is deemed to have been validly executed. minor did not obtain required assistance for conclusion of civil or customary marriage And the (voidable) marriage is not yet annulled Patrimonial consequences are the same as if the minor were of age when the marriage was entered into any antenuptial contract ITO which the accrual system is included → is deemed to have been validly executed ONLY applies to antenuptial contracts persons below 18 cannot conclude a civil union → and so s24(2) of the MPA does not apply to them 5.4.7 → Termination Antenuptial and postnuptial contracts do not come to an end upon dissolution by death or divorce FMR SEMESTER TEST 2 NOTES 28 donations will remain valid and enforceable until the terms of the donation has been fulfilled The marriage contract terminates only when all terms have become irrelevant, have been fulfilled, or have been terminated by order of court 5.5.1 General Three options to excluding the default property system of ICOP form 1 Marriage OOCOP but including profit and loss form 2 form 3 Marriage OOCOP and Marriage OOCOP and excluding community of profit and loss and excluding the excluding community of profit and loss but including the accrual systems accrual system places parties at a more equal rare to find No joint estate exclude community of property Spouses manage and administer estates separately everything they had prior to the marriage go to Only type of OOCOP that could be concluded before MPA 1 NOV separate estates 1984 everything the accumulate during the marriage goes into the joint estate All assets and debts before conclusion of marriage and Profit and Loss during the existence of marriage foot upon dissolution of the marriage No joint estate all assets and debts before conclusion of marriage and Profit and Loss during existence of the marriage Estates remain separate and are administered and managed by spouses is not in favor of women who raises kids and did not have an opportunity to accumulate wealth good for couples who are on equal footing only possible option for FMR SEMESTER TEST 2 NOTES 29 form 1 form 2 form 3 polygynous marriages When does the Accrual system apply? 1. Date of marriage a. Marriage concluded before the commencement of the MPA Act of 1 NOv 1984 → for whites, coloureds and asians b. 1 dec 1988 for Blacks 2. Antenuptial contract must exclude Community of property and community of property and loss a. No community of property and no sharing of anything 3. When it was not expressly excluded → must be expressly excluded if you dont want it to apply a. Expressly does not mean “in writing” → there must just be no doubgt between the spouses that they wanted to exclude the accrual system 💼 Odendaal v Odendaal 2001 → Agreed verbally “what is yours is yours and what is mine is mine” → Never registered agreement → Court had to determine if it was valid → yes it is but not enforceable against 3rd parties → Never mentioned accrual system in verbal agreement → Court ruled that they were married OOCOP with accrual bc it was not expressly excluded → “antenuptial contract” includes formal registered contracts, as well as informal and unregistered contracts → which includes oral contracts FMR SEMESTER TEST 2 NOTES 30 Content of the accrual system S3(1) provides that: At the dissolution of the marriage The spouses whose estate shows no accrual or 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 ⇒ Accrual claim only arises at the dissolution of the marriage ⇒ Contingent or conditional right during the existence of the amrriage ⇒ Claim for accrual only becomes a vested right at the dissolution of marriage ⇒ during existence of marriage is not transferable or attachable 1 Calc. the overall commencement values of respective estates - Commencement value 1. It is deemed to be nil if liabilities exceed assets or it is declared in the antenuptial contract - can also be declared in a the commencement value was not declared → and the contrary was not proven 2. statement made before of within 6months after ITO S6(3) the values declared in the antenuptial the conclusion of the marriage and signed by the other spouse contract or statement serve as prima facie proof of the net commencement value 3. Assets 2 Calc. the net end values of respective estates Calc. the accrual 3 4 of respective estates calc. difference between accrual of respective estates 5 FMR SEMESTER TEST 2 NOTES divide in half 31 💼 Olivier v Olivier Cannot change contract unilaterally Cannot contest value bc you declared it Commencement values are conclusive proof f the said values Can only be contested on common law grounds of misrepresentation, duress, undue influence, or rectification Prima facie proof only in regard to third parties 💼 Thomas v Thomas We all know what Prima Facie proof is They can bring evidence to the contrary to change commencement value at dissolution Confirmed in TN v NN The wording of section 6(3) was clear and declared values should only be considered prima facie proof of those values → and are therefore subject to rebuttal by any interested party and not only by third parties Majority of authority thus support the view that commencement values that were declared can be disputed ⇒ Principles of calculating net commencement value 1. It is deemed to be nil if liabilities exceed assets or it the commencement value was not declared → and the contrary was not proven 2. ITO S6(3) the values declared in the antenuptial contract or statement serve as prima facie proof of the net commencement value FMR SEMESTER TEST 2 NOTES 32 3. Assets that have been excluded from the accrual system in terms of the marriage contract → as well as assets replacing those assets DO NOT form part of the calculation of commencement value or end value 4. if assets are taken into consideration for comm. vale in one clause in the antenuptial contract but excluded from calculation of accrual in another clause antenuptial contract is void and the marriage in ICOP ⇒ the 5. The commencement value is adjusted at dissolution of the marriage to provide for any fluctuations in the value of money over time in accordance with the CPI ⇒ Principles of calculating of Net end value 1. amount accrued by way of satisfaction (non-particmonial damages) does not form part of the end value 2. an inheritance, a legacy, donation that accrues to a spouse during the subsistence of the marriage → as well as any other assets which is acquired by virtue of the possession or former possession of the aforementioned asset → do not form part of the accrual calculation a. Unless agreed upon or stipulated upon b. A donation received prior to the marriage cannot be excluded unless antenup contract provides otherwise 3. donations between spouses are also not taken into account a. This excludes donations mortis causa (takes effect upon death of spouse making donation) 4. Assets transferred to an alter ego trust may be taken into account if there is proof that spouse never gave up management and control of assets 5. As seen in AB v JB → the moment upon which the nett end value is to be determined for purposes of calculating the accrual claim is at “dissolution of a marriage” a. The claim for accrual can only be instituted after the divorce order has been granted b. As seen in TN v NN → the divorce action and accrual action could be combined in a single action FMR SEMESTER TEST 2 NOTES 33 Protection of spouses right to share in accrual Section 8(1) of MPA 💡 A court may, upon application by a spouse, order the immediate division of accrual in accordance with the provisions of the accrual system → or as the court deems just To succeed with an application it must be proved that : 1. The applicants right to share in accrual at dissolution of the marriage is seriously jeopardized by the conduct of the other spouse 2. The applicant will probably be seriously jeopardized by the intended conduct of the other spouse 3. That the other person will not be jeopardized by the application 🚨 DISCLAIMER This is not intended to replace your own full reading of the cases - it is a summary of the facts, issues, and judgements. NB CASE SUMMARIES MN v MM and Another 2012 4 SA 527 (SCA FACTS: The respondent was married to the deceased under customary law in 1984, and they had three children. The marriage was unregistered. The deceased passed away in 2009 while the marriage was still valid. FMR SEMESTER TEST 2 NOTES 34 The respondent attempted to register the marriage after the deceased's death, but she learned that the appellant had also sought to register a purported customary marriage with the deceased in 2008. The respondent argued that the appellant's marriage was null and void as she had not been consulted before it was contracted, and the deceased did not comply with Section 7(6) of the Act, which requires approval from the court for a subsequent customary marriage. The deceased's elder brother confirmed the respondent's marriage and the customary tradition that the first wife should be consulted before a second marriage. Section 7(6) of the Act mandates that a husband in a customary marriage must seek court approval for a written contract regulating future matrimonial property systems for any subsequent marriages. The high court found that non-compliance with Section 7(6) renders a subsequent customary marriage null and void from the outset, as the section uses peremptory language indicating that the legislature intended invalidity in cases of noncompliance. ISSUES: The main issue in this appeal is whether the failure of the husband to seek court approval for a written contract regulating the matrimonial property system of both his first and second marriages, as required by Section 7(6) of the Act, invalidates the subsequent customary marriages from the outset, without an express provision in the Act specifying such consequences. The appellant argued that the court's conclusion on the consequences of noncompliance with Section 7(6) is incorrect as the section is not peremptory. It was not the legislative intention to change customary polygamy by making the validity of a second marriage contingent on court consent. The appellant also cited relevant Constitutional Court decisions. The Women's Legal Trust, admitted as amicus curiae, supported the appellant's position and emphasized that the interpretation of Section 7(6) should consider historical inequalities and the rights of women in polygamous marriages, arguing that invalidating the second customary marriage undermines the second wife's rights and equality. FMR SEMESTER TEST 2 NOTES 35 The respondent's counsel argued that the appellant failed to prove the validity of her customary marriage to the deceased. The issue of validity was not challenged through a cross-appeal, so the court need not decide it. It was also argued that Section 7(6) aimed to protect the interests of the existing wife, requiring her inclusion in proceedings regarding the proposed contract regulating matrimonial property SUMMARY : The Supreme Court of Appeal (SCA) issued a judgment in the case of Mphephu Maria Ngwenyama v Modjadji Florah Mayelane. The appeal challenged a North Gauteng High Court order declaring null and void a polygynous marriage between the appellant and her deceased husband, as it did not have a contract regulating future marital property systems, as required by Section 7(6) of the Recognition of Customary Marriages Act 120 of 1998. The deceased was married to both the appellant and the respondent under customary law, and both wives were unaware of each other's marriages until after the husband's death when they sought to register their marriages. The high court declared the appellant's marriage null and void due to noncompliance with Section 7(6). On appeal, the SCA ruled that although Section 7(6) uses peremptory language, courts should interpret statutory provisions in a manner consistent with the constitution. Interpreting Section 7(6) strictly would cause hardship to women married under customary law and have negative effects on the legitimacy of children born to such marriages. The court concluded that the legislature could not have intended that noncompliance with Section 7(6) would invalidate an otherwise valid customary marriage. ST v CT 2018 (5) SA 479 (SCA) The Supreme Court of Appeal (SCA) partially upheld an appeal by Mr. ST in a divorce case. FMR SEMESTER TEST 2 NOTES 36 The SCA overturned findings and orders by the High Court in Cape Town regarding accrual and maintenance. It was ruled that despite credibility issues with Mr. ST's testimony, his version had to be accepted where it aligned with objective facts, and there was no contradicting evidence. The prenuptial waiver of post-divorce maintenance by Mrs. CT, contained in an antenuptial contract, was deemed invalid and unenforceable. The majority cited public policy concerns, specifically Section 7 of the Divorce Act 70 of 1979, while the minority held it invalid because prenuptial agreements can't override the court's statutory power to grant maintenance. The SCA stated that a party, as per the Matrimonial Property Act 88 of 1984, must properly comply when disclosing assets, and the burden of proof lies with the party claiming the exclusion of certain assets from their estate for accrual calculation. A living annuity was ruled not to be part of a party's estate for the purpose of accrual calculation. Gumede v President of RSA and Others 2009 (3) SA 152 (CC) The Constitutional Court issued a judgment concerning the confirmation of an order of constitutional invalidity by the Durban High Court, involving provisions of the Recognition of Customary Marriages Act, 1998, the KwaZulu Act on the Code of Zulu Law Act, 1985, and the Natal Code of Zulu Law Proclamation of 1987. Elizabeth Gumede entered into a customary marriage in 1968, which subsequently broke down, and her husband initiated divorce proceedings. The Recognition Act governed customary marriages entered into after its enactment, making them automatically in community of property, but it did not provide for marriages concluded before its commencement. Customary law in KwaZulu-Natal, as codified in the KwaZulu Act and the Natal Code, gave husbands ownership and control of family property, leaving wives with nothing upon marriage dissolution. The Constitutional Court found the impugned provisions to be discriminatory based on gender, subjecting only women in customary marriages to unequal proprietary consequences. FMR SEMESTER TEST 2 NOTES 37 The court ruled that the government parties pay the legal costs of Mrs. Gumede and confirmed the order of constitutional invalidity, declaring several provisions inconsistent with the Constitution and invalid. Section 7(1) of the Recognition Act, insofar as it retains customary law's governance of marriages entered into before the Act's commencement. Section 7(2) of the Recognition Act, distinguishing between marriages entered into before and after the Act's commencement. Section 20 of the KwaZulu Act on the Code of Zulu Law, granting the family head ownership and control of family property. Section 20 of the Natal Code of Zulu Law, providing the family head ownership and control of family property. Section 22 of the Natal Code of Zulu Law, placing inmates of a kraal under the control of the family head. Ramuhovhi and Another v President of the RSA and Others 2018 (2) SA 1 (CC) The Constitutional Court delivered a judgment confirming the order made by the High Court of South Africa in Limpopo, declaring section 7(1) of the Recognition of Customary Marriages Act (RCMA) inconsistent with the Constitution and invalid due to unfair discrimination against women in polygamous customary marriages entered into before the commencement of the RCMA on the basis of gender and race, ethnic, or social origin. Section 7(1) of the RCMA governed the proprietary consequences of customary marriages entered into before the RCMA's commencement, continuing to be governed by customary law, thus creating inequality in property rights for women. The Applicants were the children of a deceased who had entered into polygamous marriages. They challenged the constitutionality of the RCMA's provisions and sought retrospective application of the order to estates not yet finalized. The Court found that section 7(1) of the RCMA discriminated against women in preAct marriages based on gender and marital status, limiting their rights to human dignity and protection from unfair discrimination, with no justifiable reason. The remedy granted involved suspending the declaration of invalidity along with interim relief. Husbands and wives in pre-Act polygamous marriages must equally FMR SEMESTER TEST 2 NOTES 38 share ownership and rights related to family property, including management and control, as well as similar rights regarding house property. The declaration of invalidity has a retrospective effect, except it does not affect finalized estates or property transfers that have taken effect. Transfers under legal challenge at the time of transfer are subject to the challenge FMR SEMESTER TEST 2 NOTES 39