Chapter 5: Patrimonial consequences: Customary marriages (Week 5)

some provisions of RCMA declared unconstitutional in Gumede case and Ramuhovhi case because they excluded women from managing
matrimonial property, discriminatory in terms of gender. Monogamous CusM concluded before or after the start of the RCMA are in
community of property unless a ANC says others. Polygynous CM entered into before start of the RCMA, afford the wives co-management
of all marital property with the husband as well as co-ownership of the house and family property. Polygynous CM entered into after start
of the RCMA, have to comply with section 7(6). If the (first) CM is in community of property and the second marriage is not concluded in
compliance with section 7(6), the second CM is out of community of property (MN v MM) and the first marriage remains in CIP. If section
7(6) is complied with, the union contract that the court has approved will determine the property systems of the future marriages.

5.2.1 Patrimonial consequences: In community of property (Week 6)

Edelstein v Edelstein – the court held that since ANC was void, marriage is in COP. Cases where CIP does not arise: (1. Existence of a valid
union contract i.e., ante/post union contract in which CIP is excluded. 2. Law of the union domicile determines union is COOP. 3. Under
Black Admin Act. 4. If minor married without consent and union is annulled, court may divide assets). Content of universal community of
property: (1. Joint assets, including incorporeal things = Moremi v Moremi)

Assets that don’t form part of joint estate: 1. Assets excluded in a union contract = However, the fruits form part of joint estate, but
proceeds from sale don’t. 2. Assets excluded by will or deed of donation. 3.Satisfaction and patrimonial damages for personal injuries. 4.
Proceeds of life insurance accepted by nominated beneficiary = Oshry and Another v Feldman. 5. Proceeds of forfeited property =
Mazibuko v NDPP held that s52 empowers the court to exclude innocent’s owners’ interest in the proceeds of the property from the
operation of the forfeiture order. The court also held it is empowered to order that the interest not form part of the joint estate. 6. Assets
replacing excluded assets. Shared Joint debts: 1. Ante-union debts. 2. Post-union debts = (a) Contractual debts. (b) Delictual debts = first
recover from responsible spouse separate estate then joint if the debt is not settled. 3. Attachment of separate estates = cannot attach for
private debts of the other spouse, 3rd parties/creditors can attach but first start with responsible spouse

5.2.4 Spouses capacity to act:

Nature of concurrent administration: 1. Equal & independent admin = spouses administer freely without consent e.g buy household
necessaries, lend & borrow money. 2. Joint adminstrtn = needs consent to conclude/effect a transaction). Kotze NO v Oosthuizen held that
the consent requiment does not apply to executor of join estate after death of one spouse. Consent req: 1. Prior written consnt by 2
witnesses = immovable and surety. Surety not necessary if part of ordinary course of profession, trade or business held in Amalgamated
Bank of SA Bpk v De Coede. 2. Written consnt of 2 witnesses = (a) enters contract to alienate/burden immovable property (b) enters credit
agreement (c) buy immvable property under a contract of sale. 3. Written consent = (a) cedes, pledges etc by/on behalf of other spouse in
financial institution (b) alienates/pledge coins, paintings etc/ asset held as an investment (c) withdraws money credited to the name of the
other spouse in a banking institution (d) institutes/defends proceedings. 4. Oral/tacit consent = Visser v Hull and Others held if property
sold below market value, difference represents prejudicial donation. Consequences if consent req are not met: Amalgamated Bank of
South Africa Ltd v Lydenburg Passenger Services CC held that act contrary to s15(2) & (3) is void. Held ownership does not pass and asset
may be claimed, if 3rd party acted bona fide, then it is valid. Protective measures: (1. Protection of 3rd parties = If spouse does not know
consent is required trans deemed entered with consent frm other spouse. 2. Spouse who acts without consent and knows suffers loss).
5.2.5 Spouses Capacity to Litigate (Consent Req): (1. May not institute or defend without written consent. 2. Exceptions = separate estate,
recovery of damages against him, matters relating his profession, trade and children from prev union. 3. 3rd parties = validity cant be
challenged for lack of consent, however cost order against spouse who instituted/defended. 5.2.6 Termination of CIP: Ex parte Menzies et
Uxor confirmed CIP can dissolve in (a) death (b) divorce (c) order of division (d) change in property system

5.3 Patrimonial consequences: Out of community of property (Week 7)

Cumming v Cumming: Reversionary clause not against public policy thus it is valid and does not lead to breakdown of unions. Reversionary
clause=donation effective but goes back at end of union:

Req for valid contract: 1. Consensus 2. Capacity to Act 3. Formalities met 4. Executable in physical also juridical 5. Contract and
performance must be lawful. ANC Req to Exe and Reg: 1. Attested by Notary 2. Reg in deeds registry in 3 mnths (RSA / 6 months outside
RSA) after date of execution. Distinction between reg & unreg ANC: (Ex parte Spinazze and Another NNO)=An ureg ANC is no force to 3rd
party. Enforceable between spouses themselves. Union contracts of minors: 1. If consnt givn but not assitnce = contrt null & void (Edeltein
v Edelstein) 2. If no asstance to conclude union, patrimonial View points: (A) as if the minor was of age when the CM was entered into (B)
ANC in terms of which the accrual system is included is deemed to have been validly executed thereof. Rectification Union Contract: 1.
Possible to correct contract if does not reflect true intention of the spouses. Ex parte Dunn et Uxor=parties were allowed to rectify their
contract. Parties had to prove (1) Contract does not reflect the true intention of the spouses during execution (2) Acted bona fide and did
not contribute to the incorrect version (3) Application brought within reasonable time. Termination of Contract: The union contract
terminates only when all the terms have become irrelevant, fulfilled or have been terminated by court order Reg for change of property
system: (1) Spouses jointly make the application (2) sounds reasons must be given (Ex parte Engelbrecht et Uxor) (3) creditor must receive
sufficient notice of the application (4) No other person must be prejudiced. Changing property system informally: Honey v Honey held that
a property system of a union cannot informally be altered stante matrimony(during marriage)except in terms of the provisions of section
21(1). An informal post-union contract is therefore not enforceable between the spouses. Retrospective effect of change case laws: (1) Ex
parte Kros and Another court concluded the change can be made with retrospective effect (2) Ex parte Oosthuizen and Another held such
change cannot be made retrospectively, court also basis its decision on the word “future” ( 3) Ex parte Burger decided commencement of
that marriage. Position then is that if they wish to introduce accrual system, can only be introduced with retrospective effect from
conclusion of their union. Section 7(6) of RCMA: (1) Compulsory application (2) Mn v MM held non-compliance will not invalidate further
union because does not relate to reg for valid Cus’Marriage. (3) Is required in husband already in a Cus’Marrage and wants another same
marriage. Court held COP is only property that apply to polygynous cust’marriage. Types out of community of property: (1) Exclude only
community of property=pre-debts&assets not included only post-union (2) Same as (1) AND profit and loss=means pre&post debts+assets
remain separate (3) Accrual system applies unless expressly excluded. Unions subject to the accrual system: (1) Unions concluded after
start of Matrimonial Property Act (2) Spouses must have concluded union in terms of ANC where CIP and profit & loss are excluded. ( 3)
Accrual must expressly be excluded by ANC (Odendaal held expressly does not mean only in writing but there must be no doubt partners
wanted to exclude the accrual system. Odendaal v Odendaal interpreted meaning of ANC =Held ANC not only refers to formal registered
ANC but wide enough to include informal/unregistererd ANC. Informal unregistered contracts were also held to include oral informal ANC
and not only unregistered written ANC. Protection provided by section 8(1) of the Matrimonial Property Act: (1) Can have immediate
division of accrual by application (2) Will have to prove right to share in the accrual is seriously jeopardised or (3) will probably be
jeopardised by the conduct of the other spouse and (3) that other persons will not be jeopardised by the application. Also, court could
compensate the prejudiced spouse for loss already suffered, can also change property system.

6.2.1 Grounds for divorce and related matters (Week 8)

Ways union dissolved: (1) Death (2) Voidable union dissolved upon annulment (3) Presumption of death order (4) Divorce. Ground in
RCMA: Only irretrievable breakdown=Characteristic(relationship between spouses no longer normal and no reasonable prospect of
restoration). Determining Irretrievability: Schwartz v Schwartz=to determine irretrievability, consider what happened in the past, also
present attitude of the parties to the union relationship. Naidoo v Naidoo=inquiry into history of the union relationship (objective
investigation/test) & inquiry into current relationship (subjective investigation/test). Swart v Swart describes approach as when one wants
out, then the reason must arise, answer is to look at conduct. Coetzee v Coetzee argued for irretrievable breakdown to be present, change
in pattern of union relationshp should take place, if no change then no question to breakdown. Finding considered incorrect (initial
unhappiness till end thus no change?) S4(2) Divorce Act Examples of irretrievable breakdown: (1) not lived together atleast one year 2.
committed adultery 3. sentence and habitual criminal order and imprisonment. Req for Divorce: (1) Mental illness 1A. admitted to mental
institution, detained as a state patient (DCS), detained as a mental ill convicted prisoner 1B. Atleast 2 years not discharged unconditionally
1C. Evidence of 2 psychiatrists=no reasonable prospect will be cured. (2) continuous unconsciousness= by physical disorder,
unconsciousness last for atleast 6 months , evidence of two medical practitioners one being neurosurgeon appointed by the court say no
prospect of regaining. Can divorce under mental and unconscious be granted cause of breakdown: Dickinson v Dickinson=held mental
illness serves as objective test for irretrievability of CM, since reg is irretrievable breakdown, whatever cause, should be proved. Smith v
Smith=disagreed with Dickson, said plaintiff is not free to circumvent, by his choice of procedure, the protective measures created for
mentally ill and unconscious. Held S4 can be used if breakdown caused by state of illness that does not fall within ambit of S5. S4 Divorce
can be brought if action is not based on S5. Lan Loggerenberg suggests present confusion can be cleared by amending D.Act, by deleting S5
and allow S4 as only ground. This supports RCMA as it only wants irretrievable breakdown as only ground. Section 5A of D.Act provision
and application: Empowers the court to refuse to grant divorce order if the other spouse will not be free to remarry unless the marriage is
dissolved according to the prescripts of the religion, or to make any other order it considers just. Amar v Amar=court did not refuse to
divorce, but ordered payment of maintenance. Raik v Raik=court made decree of specific performance to obtain religious divorce.
Consequences of divorce: (1). Status change to unmarried/single: 1A. Retain surname of revert back 1B. Majority remains 1C.
Impediments due to relationship by affinity applicable 5. Will will be carried out if the spouse dies within 3 months after dissolution (2)
Patrimony of spouses: Division of property takes place (i) Pension interest=entitled to what is in the pension fund at the time of divorce.
Cockroft v Mine Employees Pension fund held there must be clean break, mean be financial independent from each other. Thus, only
claim what existed at the moment of divorce and claim that moment or reinvest somewhere. GN v JN=spouse can still claim even if order
makes no reference to pension interest division. (ii) Forfeiture=Irretrievable breakdown court may make order which patrimonial benefits
are forfeited to the other, however not due to mental illness or unconsciousness. The court may issue full/partial forfeiture. ( iii)
Redistribution=Gumede case: CC held red’order not limited to Cust’union which is OOCP. Party must have contributed directly/indirectly
to maintaining the increasing estate. Contribution=rendering services or saving of expenses/any manner. Beaumont v Beaumont held
duties of wife at common count as contribution. Kritzinger v Kritzinger rejected red’order simply for choosing where spouse works, held
contribution is positive act by means of which spouse puts something into increasing estate. Party may bring application to defer
satisfaction of red’order. (3) Factors for divorce: Spouse can claim maintenance till death or remarried. (1) Amount in the estate available
for distribution to heir (2) Existing and expected means and duration of the union. Oshry and Another NNO v Feldman held payments
made voluntary could not be regarded as part of “expected means” as she had to right to such (3) Standard of living during subsistence of
union and age of surviving spouse at death of deceased spouse. Zwiegelaar v Zwiegelaar=once-off payment can be made at divorce. Case
Laws-other factors (1) Existing or prospective means of each of the parties:Kroon v Kroon: house was big and court held it could be sold
to provide maintenance needs of other. Meyers v Marcus held prospective inheritance not a prospective means. (2) Respective earning
capacities: Botha v Botha held spouse entitled to rehabilitative maintenance and receive training etc to be restored to employment.
Kooverjee v Kooverjee warned against thwarting the achievement of real and substance equality, de facto roles of women cannot be
ignored. (3) Financial needs and obligations: Butcher v Butcher=court used this factor to award maintenance to 2 children adult children
who did want to be joined as parties to divorce proceedings of parents. Financial needs also include responsibility to provide children with
accommodation. (4) Age of each spouse: Buttner v Buttner=Held old age spouse may have maintenance as age makes it improbable to
further her career or find word. (5) Duration of Union: Grasso case =spouse of lenthly period makes it eligible for maintenance compared
to one of short period. Also, spending long period limits potential earning capacity if spouse was primary caregiver for long. (6) Standard of
living prior to divorce: Grasso case notes standard of living declines over time, but claimant may be entitled to be maintained same
standard of living after divorce (7) Conduct relevant to breakdown: Botha v Botha=conduct not blameworthy thus no penalty
consideration should apply awarding maintenance. (8) Any other factor: SH v EH. Token maintenance: Qoza v Qoza and Buttner v Buttner
(1) need for future maintenance must be proved on a balance probabilities. Rescission, suspension or variation of maintenance order: (1)
Application made at Maintenance court (2) Cohen v Cohen mentions the M’order ceases to be force and effect. (3) Change in financial
position may be reason (4) increase in means of the liable spouse (5) Increase in maintenance needs. M orders lapsing automatically: (1)
Death or re-union. SH v EH held M’order ceases to exist on reunion, but was not expressed in Odgers v De Gersigny. (2) Death of liable
partner. Hodges v Coubrough NO and case of Els v Jagga NO held as such. Matter confirmed at Kruger NO v Goss.