Week 7_In community of property_Monday 21 August.pdf

• Civil marriage & civil union • Customary marriages • Spouses • Children 1. 2. Validity Legal requirements consequences 4. Consequences of dissolution • Invariable consequences • Variable consequences 3. Dissolution • Death • Divorce General remarks • Discussion Paper 160 on the Review...

• Civil marriage & civil union • Customary marriages • Spouses • Children 1. 2. Validity Legal requirements consequences 4. Consequences of dissolution • Invariable consequences • Variable consequences 3. Dissolution • Death • Divorce General remarks • Discussion Paper 160 on the Review of Aspects of Matrimonial Property Law (Project 100E) • Amongst other suggestions, it proposes a change to the default matrimonial property system. 1. Introduction • Default property system in South Africa is in community of property. • Must enter into union (antenuptial) contract to exclude default system. • Default system can thus be changed: it is variable. • Matrimonial Property Act 88 of 1984 2. Cases where community of property does not arise The presumption of in community of property can be rebutted by: 1. Valid union contract. 2. Law of the matrimonial domicile. 3. Muslim marriages. Note: Black marriages before 2 December 1988 were previously regarded as out of community of property BUT Sithole v Sithole (AS v GS - case) 3. Legal nature of in community of property Debts: Before conclusion of the union Assets: Before conclusion of union Joint estate Assets: After conclusion of union Debts: After conclusion of the union Joint estate of X and Y Assets and debts of X before marriage Assets and debts of Y before marriage Profit and loss during marriage Tied co-ownership Common debts Concurrent administration Tied co-ownership Half undivided indivisible share 7 8 Content of universal community of property ASSETS DEBTS 4. Content of the joint estate ASSETS • Corporeal things. • Rights and claims with a positive monetary value that are incorporeal e.g right of occupation or a pension interest of a spouse. • Ownership vests by operation of law (ex lege). Assets that do not form part of the joint estate 1. Assets excluded in a marriage contract. 2. Assets excluded in a will or deed of donation. 3. Satisfaction and damages for personal injuries – s 18(a) and 18(b) of the Matrimonial Property Act. (NB! NB!) Means in practice: There is a joint estate and one / both parties could also have a separate estate. Section 18(a) of MPA: Delict by third party against 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; Satisfaction received from a THIRD 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 SPOUSE for bodily injuries fall into separate estate. Delictual claims between spouses Van der Merwe v Road Accident Fund: Facts: [11]: “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 cop] has since ended. They are divorced.” [13]: “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 hospitalisation, suffering, pain and discomfort, loss of amenities of life, permanent disability and cosmetic disfigurement. On this account, she claims damages of nearly R500 000, 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 . 16 Content of universal community of property ASSETS DEBTS Content of universal community of property DEBTS • Debts incurred before conclusion of the union • Debts incurred after conclusion of the union • Co-debtors 18 “Die de man ofte wijft trouwt, die trouwt ook de schulden” Joint debts General rule: Joint debts can be recovered from separate estates or joint estate of the spouses (no particular order). Exception: • S 19 of MPA • Spouse held liable for a delictual debt • Specific order of recovery and • Provision for an adjustment at the division of joint estate. 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; (b) Y loses six months’ salary which amounts to a loss of R30 000; and (c) Y suffers extreme pain and suffering, disfigurement and loss of amenities of life following the amputation of her arm. Now provide Y with answers to the following questions: 1. Will Y be able to claim (a), (b), and (c) from X? Why/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. 21 Spouses’ capacity to act Concurrent administration Equal administration Joint administration Matrimonial Property Act 15. Powers of spouses (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. Only applies where both spouses are alive – Kotze v Oosthuizen Consent requirements (a) Prior written attested consent (b) Written attested consent (c) Written consent (d) Oral or tacit consent (e) No consent Consent requirements (a) Prior, written attested consent • Alienation of immovable property • Signing as surety Consent requirements (b) Written attested consent • Contract to alienate immovable property • Credit agreements Consent requirements (c) Written consent • Selling shares • Other assets mainly held as an investment Consent requirements (d) Oral or tacit consent • Selling furniture or other effects of the common household • Receipt of money due to other spouse or joint estate Consent requirements What if the consent requirements are not complied with? What is the effect on the validity of that transaction and how is the joint estate affected? Consent requirements ► Act is silent on the consequences ► ABSA v Lydenburg Passenger - act contrary to consent requirements is void ► Result: If asset transferred it can be reclaimed ► BUT: See protection of 3rd parties (s 15(9)(b) of MPA) Protective measures ► Section 15(9)(a) of the Matrimonial Property Act: Protection for a bona fide third party - spouse enters into transaction with third part contrary to consent requirements - third party does not know and cannot reasonably know that transaction is contrary to consent requirements - transaction is deemed to have been entered into with required consent. Protective measures ► Section 15(9)(b) of the Matrimonial Property Act: Protection for spouse whose consent was required - spouse who enters into transaction knows or ought reasonably to know that he will probably not obtain consent required from other spouse - and joint estate suffers a loss as result of the transaction - an adjustment must be effected in favour of the other spouse upon division of the joint estate Protective measures ► Section 16(1) of the Matrimonial Property Act: Protection for spouse if consent is withheld unreasonably or cannot be obtained for a good reason ► Section 16(2) of the Matrimonial Property Act: Can suspend power definitely or indefinitely ► Section 20(1) of the Matrimonial Property Act: Division of the joint estate during existence of the marriage Spouses’ capacity to litigate General rule: Spouses need WRITTEN CONSENT Exceptions: • Separate estate; • Recovery of damages in case of a delict • Profession, business or trade • Institute matrimonial litigation • Children from a previous marriage What if the spouse does not have the necessary consent? Effect against third parties: • Cannot be challenged by third party for want of consent • Costs to be recovered from separate estate of spouse Termination of community of property ► Death ► Divorce ► An order for division in terms of s 20 ► A change in the matrimonial property system in terms of s 21.