Week 6 Marriage Contracts PDF

THEME 2: THE LAW RELATING TO LIFE PARTNERSHIPS 1. 2. Validity requirements Legal consequences 4. Consequences of dissolution 3. Dissolution • Invariable consequences • Variable consequences WEEK 6: MARRIAGE CONTRACTS Overview 1. Contents of marriage contracts 6. Termination of marriage co...

THEME 2: THE LAW RELATING TO LIFE PARTNERSHIPS 1. 2. Validity requirements Legal consequences 4. Consequences of dissolution 3. Dissolution • Invariable consequences • Variable consequences WEEK 6: MARRIAGE CONTRACTS Overview 1. Contents of marriage contracts 6. Termination of marriage contracts 2. Requirements Marriage contracts 3. Marriage contracts of minors 5. Rectification 4. Interpretation 1. Contents of marriage contracts What type of clauses can be found in marriage contracts? Any clause as long as it is not in conflict with- • the law • good morals • the nature of a marriage 1. Contents of marriage contracts What type of clauses can be found in marriage contracts? Types of clauses commonly found in marriage contracts include: (i) Donations clauses (ii) Succession clauses (iii) Matrimonial property system 1. Contents of marriage contracts What type of clauses can be found in marriage contracts? (i) Donations clauses • Donations are permissible – s 22 of MPA • Including donations in marriage contract has certain advantages. • Donations can be made subject to suspensive conditions, resolutive conditions, and time clauses. • Example of resolutive condition: Cumming v Cumming 1. Contents of marriage contracts What type of clauses can be found in marriage contracts? Cumming v Cumming One party donated a house to the other party "subject to the condition that... in the event H of a separation, judicial or otherwise, or an order of divorce being made in any Court between (the parties) howsoever caused and irrespective of which of the said consorts is responsible for the same, then the said settlements shall revert to and become the sole and absolute property of (the respondent)". 1. Contents of marriage contracts What type of clauses can be found in marriage contracts? Types of clauses commonly found in marriage contracts include: (i) Donations clauses (ii) Succession clauses (iii) Matrimonial property system Overview 1. Contents of marriage contracts 6. Termination of marriage contracts 2. Requirements Marriage contracts 3. Marriage contracts of minors 5. Rectification 4. Interpretation 2. Requirements What must be done to conclude a valid marriage contract? General requirements for conclusion of all contracts: (i) (ii) (iii) (iv) (v) Parties must reach consensus Parties must have capacity to act Contract and performance must be lawful Prescribed formalities, if there are any Possibility of performance 2. Requirements Distinction between different types of marriage contracts Antenuptial contracts vs Postnuptial contracts 2. Requirements Which formalities must be complied with in the case of an antenuptial contract? Formal requirements specified in Deeds Registries Act: (a) Attested by notary (b) Registered in deeds registry (c) Within 3 months after date of execution 2. Requirements What if the antenuptial contract was concluded but not registered? Ex parte Spinazze • If antenuptial contract is not registered it is not enforceable against third parties • But it is valid and binding between parties to the contract 2. Requirements Different types of postnuptial contracts Section 21(1) of MPA & section 7(4) of the RCMA Section 7(6) of the RCMA • Contracts to alter current matrimonial property system applicable to the union • Contract by husband who wants to conclude a subsequent customary marriage • Voluntary application • Compulsory application 2. Requirements Postnuptial contract to alter matrimonial property system (section 21 applications) (i) Joint application (ii) Sound reasons (iii) Creditors received sufficient notice (iv) No other person prejudiced 2. Requirements Postnuptial contract to alter matrimonial property system (section 7(4) of RCMA) Provides for the alteration of property system of customary marriages concluded before RCMA (“old customary marriages”) 2. Requirements Postnuptial contract to alter matrimonial property system (section 7(4) of RCMA) 2. Requirements Can spouses change their property systems informally / extra-judicially? Honey v Honey • Must use procedure provided in sec 21. • Should parties attempt change in informal manner, the change is invalid. • Compare to the decision in Ex parte Spinazze!!! 2. Requirements Postnuptial contracts to regulate property systems of polygynous customary marriages (section 7(6) of the RCMA) • Applies to polygynous customary marriages after commencement of the RCMA • Compulsory application • MM v MN: Non-compliance with s 7(6) does not affect validity of subsequent marriage but may affect the property system Overview 1. Contents of marriage contracts 6. Termination of marriage contracts 2. Requirements Marriage contracts 3. Marriage contracts of minors 5. Rectification 4. Interpretation 3. Marriage contracts of minors • Special rules apply when minors conclude a marriage contract. • Note: where marriage contract was entered into without the necessary assistance/consent, contract is completely void (Edelstein v Edelstein) • Section 24(2) of Matrimonial Property Act: applies where antenuptial contract AND marriage was concluded without consent and marriage was not set aside. Overview 1. Contents of marriage contracts 6. Termination of marriage contracts 2. Requirements Marriage contracts 3. Marrige contracts of minors 5. Rectification 4. Interpretation 6. Termination of marriage contracts • Does not totally lapse upon dissolution • Only terminates once all terms have become irrelevant/fulfilled/terminated by a court