Patrimonial Consequences of a Marriage PDF

**Study Unit 5** **Patrimonial Consequences of a Marriage** (A) Matrimonial property law (B) Overview of matrimonial property systems (BI) Introduction (BII) Marriage in cop (BIII) Marriage out cop (C) Amendment of the matrimonial property system (CI) The immutability principle (CII)...

**Study Unit 5** **Patrimonial Consequences of a Marriage** (A) Matrimonial property law (B) Overview of matrimonial property systems (BI) Introduction (BII) Marriage in cop (BIII) Marriage out cop (C) Amendment of the matrimonial property system (CI) The immutability principle (CII) Amendment of system during the marriage (A) **Matrimonial Property law** Determines the patrimonial or financial consequences of concluding and dissolving a marriage It provides rules that regulates the financial relationship between spouses (and spouses and third parties) Spouses may regulate the patrimonial or financial consequences of their marriage Spouses must choose between options provided by SA law Mostly found in statutory law Matrimonial Property Act and the Divorce Act Common law rules applicable in certain respects Choice has important consequences: For the relationship between the parties (inter partes) For third parties (ie. potential creditors). (B) Overview of the matrimonial property systems (BI) **Matrimonial Property Act** In community of property Out of community of property (excluding profit and loss) Out of community of property with the accrual system (BII) **In community of property (in cop)** **In community of property is a default position:** It comes into operation by operation of law One joint estate comes into existence Joint estate includes all assets and liabilities acquired before or during the marriage by the parties subject to a few exceptions. Parties are co-owners of all the assets in the joint estate in equal and undivided shares **In customary law**, it is possible for a polygamous marriage to be in community of property in respect of one wife and to be out of community of property in respect of other wives MN v MM BIII Out of community of property (ocop) **Out of community of property & profit & loss without the accrual system:** Parties can conclude an antenuptial contract to exclude community of property and accrual system In marriages out of community of property, spouses retain their separate estates Each spouse can act as they wish in respect of their own estate Spouses are not liable for each other's debts subject to the principles of household necessaries **Out of community of property & profit & loss, but with the accrual system** If parties conclude an antenuptial contract and do not specifically exclude the application of the accrual system, this system will be applicable to the marriage by operation of law: The parties retain their separate estates The parties are also not liable for each other's debts The accrual system comes into operation only at the dissolution of the marriage, where the spouse with the lesser estate can share in the growth of the spouse with the greater estate (C) **Amendment of the matrimonial property systems** Informal agreement that alters the matrimonial property system has no legal effect (Honey and AM v HM) Spouses can, however, enter into agreements that adjust some of the consequences of their chosen matrimonial property system Spouses married out of community of property can enter into a universal partnership RD v TD In terms of section 20(1) of the Matrimonial Property Act, a spouse married in community of property can bring a court application for an order for the immediate division of the joint estate in equal shares This application can be brought where the other spouse's conduct is likely to seriously prejudice the interests of the spouse bringing the application in the joint estate CI **The immutability principle** The immutability principle has been relaxed to allow parties to change their chosen matrimonial property system after the conclusion of the marriage by means of a court order Refer to Section 21 of the Matrimonial Property Act A joint application must be brought to court There must be sound reasons for the proposed change Creditors must be given sufficient notice of the proposed change Ex parte Lourens et Uxor -- the court set out the procedure for s21 applications and laid down guidelines. See p 79 CII **Amendment of the property system during the marriage** Application for division of the joint estate (s 20 MPA): **Requirements** Discretion of the court Amendment (s 21 MPA): Procedure (see Ex Parte Lourens et Uxor) What is 'sufficient reason' (see Ex Parte Engelbrecht, Kros, Senekal et Uxor, Burger and Coetzee and Uxor) Effect of a s 21 order (see Ex Parte Menzies et Uxor) Section 7(4) of the Recognition of Customary Marriages Act also makes it possible for spouses in a customary marriage or marriages entered before the commencement of the Act to change their matrimonial property system by application to court It must be a joint application Sufficient written notice must be provided to creditors The court must be satisfied that no other person will be prejudiced by the proposed chance.