Family Law

LWFLA1-44

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 What will be covered in today’s lesson?

1 2 3
Week 4
Understand the concepts of Discuss the legal Discuss the effect of section
Lesson 1
'marital property' and
identify the various
consequences of delicts
committed against, or by a
15 of the Matrimonial
Property Act 88 of 1984 on
matrimonial property spouse, married in the administration of the
systems in South African community of property. joint estate for spouses
law. married in community of
property.
The Matrimonial Property Act 88 of 1984 took effect on 1 November 1988,
and since then spouses can elect between the following matrimonial property
systems:

1. In community of property;
2. Out of community of property excluding community of profit and loss;
3. Out of community of property with the accrual system.
 MARRIAGE IN COMMUNITY
OF PROPERTY
There are legal costs associated with
it is the default regime and no
the concluding of an antenuptial
antenuptial contract (a notarial
contract, and some couples wish to
contract concluded prior to marriage)
avoid such costs, thus rendering their
is required
union in community of property.

Being married in community of property results in, for

example, a joint estate in terms whereof one is
responsible for any debt incurred by one’s spouse,
including debts incurred prior to marriage (Skelton and
Carnelley, 2011). Debt incurred prior to marriage may
include, for example, contractual debt, maintenance
payable to an ex-spouse from a previous marriage or
maintenance payable to children born of a previous
marriage or extramarital children). Each spouse has an
undivided or indivisible half-share of the joint or
communal estate and each spouse has equal
management of the joint estate, and the consent of
the other spouse is required for certain transactions.
All assets belonging to the spouses prior to the
marriage and all assets accumulated during the
marriage fall into the joint/communal estate (with
certain exceptions). Each spouse has the capacity to
bind the joint estate through their actions (Cronje and
Heaton, 2016). Should insolvency result, both spouses
will be declared insolvent. Upon divorce, the assets of
the joint estate, at the date of dissolution, will be
divided equally among the parties to the marriage.
 MARRIAGE IN COMMUNITY
OF PROPERTY
it is the default regime and no antenuptial contract (a notarial contract concluded prior to marriage) is required

There are legal costs associated with the concluding of an antenuptial contract, and some couples wish to avoid such costs,
thus rendering their union in community of property.

Being married in community of property results in, for example, a joint estate in terms whereof one is responsible for any debt incurred by
one’s spouse, including debts incurred prior to marriage (Skelton and Carnelley, 2011). Debt incurred prior to marriage may include, for
example, contractual debt, maintenance payable to an ex-spouse from a previous marriage or maintenance payable to children born of a
previous marriage or extramarital children). Each spouse has an undivided or indivisible half-share of the joint or communal estate and each
spouse has equal management of the joint estate, and the consent of the other spouse is required for certain transactions.

All assets belonging to the spouses prior to the marriage and all assets accumulated during the marriage fall into the joint/communal estate
(with certain exceptions). Each spouse has the capacity to bind the joint estate through their actions (Cronje and Heaton, 2016). Should
insolvency result, both spouses will be declared insolvent. Upon divorce, the assets of the joint estate, at the date of dissolution, will be
divided equally among the parties to the marriage.
 MARRIAGE OUT OF COMMUNITY
OF PROPERTY (W/O ACCRUAL)
In terms of this marital property system, prospective spouses will need to enter into an antenuptial contract drafted by a
notary public (a specialist legal practitioner) wherein they excluded the accrual system from operating in respect of their
marriage. Such a notarial contract also needs to be registered with the Registrar of Deeds in order to be valid as against third
parties.

This means that there is no joint estate, and each spouse keeps his or her estate separately (there is no joining and no
accrual). In this case, the patrimonial position of the spouses after the conclusion of the marriage will be similar to that
which prevailed prior to the marriage

Both spouses retain their own separate estates consisting of all the assets and liabilities they obtained before
entering into marriage (Skelton and Carnelley, 2011). Spouses are not liable for each other’s debts, with the
exception of household necessaries. Where the accrual system is excluded, one spouse cannot share in the
accumulation of the other spouse’s estate.

Please note: The consequences of a marriage out of community of property, with or without the accrual
system, remain identical during the marriage, the effects of the accrual system only manifest themselves at the
dissolution (by death or divorce) of the marriage
 MARRIAGE OUT OF COMMUNITY
OF PROPERTY (WITH ACCRUAL)
In terms of this regime, an antenuptial contract notarised by a notary public, will also be required. Spouses retain control
over their separate estates, which are administered independently. All marriages out of community of property are
automatically deemed to be contracted with the accrual system operating unless its operation has been expressly excluded
in the antenuptial contract (Cronje and Heaton, 2010).

With the accrual system, the spouse whose estate has shown the smaller accrual can share in the growth/accumulation
shown by the other spouse’s estate (Skelton and Carnelley, 2011). The Matrimonial Property Act 88 of 1984 prescribes a
formula that needs to be followed when calculating the accrual. This marital property system is believed to be more just and
equitable as compared to a total separation of property that excluded the accrual system (Skelton and Carnelley, 2011).

Please note: The consequences of a marriage out of community of property, with

or without the accrual system, remain identical during the marriage, the effects of
the accrual system only manifest themselves at the dissolution (by death or
divorce) of the marriage
Calculating Accrual
Section 3(1) of the MPA provides that at the end
of the marriage, the spouse whose estate has
grown more than the other spouse’s estate must
share half of his or her comparative gains with the
other spouse
This is calculated as follows:
a. Calculate how much each spouse’s estate has
grown during the marriage (if a spouse’s estate
has decreased in value there is no growth, thus
the accrual value is zero)
b. If one spouse’s estate has grown more than the
other spouse’s estate, work out how much more
one spouse’s estate has grown than the other
c. The spouse whose estate has grown less is
entitled to half of the amount calculated in (b). In
other words, this spouse is entitled to half the
amount by which the growth of the other
spouse’s estate exceeds his/hers
 CHANGE OF MARITAL PROPERTY REGIME?

• Couples are able to, in terms of section 21(1) of the Matrimonial Property Act 88 of 1984, to apply for
the amendment of their marital regime.
• However, there are a number of requirements that have to be adhered to in order for such an
amendment to be affected. For example, there must exist sound reasons for the proposed change,
notice of the intention to amend must be provided to the Registrar of Deeds, the same which must be
published in the Government Gazette as well as two local newspapers.
• A draft notarial contract must also be submitted along with the application to court, as well as written
confirmation that no other persons (e.g., creditors) will be prejudiced by the proposed regime change.
Discussion!
What are the implications of the
following in respect of the different
marital property regimes?

• ESTATE
• ASSETS
• BANK ACCOUNTS
• DEBTS
 Delictual Damages

Delictual damages from third parties

for non-patrimonial loss = If a spouse is What happens when
Delicts committed by
awarded non-patrimonial damages for delicts are committed
or against spouses
a delict committed by a third party, the by or against spouses
married in community
money does not fall into the joint married in community
of property.
estate, but becomes his or her of property?
separate property.

Section 19 of the MPA

There are special rules
tries to improve the
about delictual damages If the guilty spouse does not have
position of ‘innocent
when delicts are committed any separate property, or if such
spouses’. It provides
by spouses married in separate property is insufficient
that a guilty spouse
community of property, or to cover the delictual damages,
must first use his/her
when 3rd parties commit then the damages must be paid
separate property to
delicts against one of the from the joint estate
pay the delictual
spouses.
damages (if any)

Paid from the joint

Why? = To ensure that the innocent
estate? = There must
spouse does not (in effect) en up
be an adjustment
paying half the delictual damages.
made in favour of the
The innocent spouse must be put
innocent spouse when
into the same financial position as he
the joint estate is
or she would have been in if the
divided (in the
delictual damages had not been paid
interest of justice and
from the joint estate
equity)
 THE HUSBANDS MARITAL POWER
• Under Roman-Dutch common law, marriages were usually in community of property and the husband
was vested with the so-called ‘martial power’.
• This state of affairs empowered the husband to deal with all the assets of the joint estate to the
exclusion and without the consent of the wife (Skelton and Carnelley, 2011).
• Section 11 of the Matrimonial Property Act 88 of 1984 repealed the sexist and discriminatory
common law rule by which a husband obtained the marital power over the person and property of his
wife. The effect of the amendments now allows spouses married in community of property, to have
equal standing in terms of the disposal of the assets of the joint estate, the contracting of debts, and
the management of the joint estate (Heaton and Kruger, 2016).
 • The cession of incorporeal rights is a legal principle on which significant amounts of money are transacted. Cession
is a bilateral juristic act whereby the cedent transfers its rights to the cessionary.
• The cessionary can be constructed as an out-and-out cession or as a cession in security. A cession in securitatem

CE debiti (also sometimes referred to as a security cession), is where a debtor cedes (transfers) to a creditor certain
incorporeal personal rights to secure the repayment of a debt (the ‘principal debt’) (Mostert and Pope, 2010).
• Examples of these ceded personal rights are – book debts, insurance policies, shares etc. In a cession in security, the

SSI cedent transfers its rights of action to a debt owed to it, known as the ‘principal debt’, to the cessionary as security
for the debt owed by the cedent to the cessionary, known as the secured debt (Mostert and Pope, 2010).

ON
• A surety agreement generally is concluded in addition to the principal credit agreement where one person takes responsibility for the
debt in the event that the debtor can no longer meet the obligations of the credit agreement (Mostert and Pope, 2010).
• For example, it is common to find banks requesting a director to sign as surety for finance advanced to the company by a bank.

SU
Surety agreements usually involve three parties namely the creditor, the principal debtor and the surety. In these agreements, the
surety undertakes to the creditor that should the principal debtor fail in its obligations that he will indemnify the creditor (Mostert
and Pope, 2010).
• This practically means that the surety will assume the financial obligations of the principal debtor. When a surety signs an agreement

RE that binds him/her as not only surety, but as co-principal debtor it has the effect that the surety’s obligations are equal to that of the
principal debtor. In other words, the creditor is now in the position to take action against the surety as co-principal debtor without
having to first claim from the principal debtor (Mostert and Pope, 2010).

TY
Van Der Merwe v RAF
• The wife (Applicant) instituted an action against the Road Accident
Fund (RAF), an insurer which is a statutory body liable to compensate
her for bodily injuries caused by the driving of a motor vehicle.
• The RAF, however, would only be liable if Applicant could institute a
lawful claim against the driver of the motor vehicle that caused her
injuries.
• In casu, the parties were married in community of property. Applicant
sustained injuries when a motor vehicle driven by her husband collided
with her. It was common cause between the parties that Applicant’s
husband had intentionally knocked her over. In fact, he went on to
reverse over her while she was lying on the ground.
• The parties have since divorced. The RAF raised a special plea to the
claim in which it admitted that Applicant was entitled to claim non-
patrimonial damages but denied liability to compensate Applicant for
any patrimonial damages by reason of the provisions of section 18(a)
and (b) read with section 19(a) of the Matrimonial Property Act 88 of
1984, which in effect prohibited claims for patrimonial damages
between spouses married in community of property.
• Applicant replied that section 18 unfairly discriminated on the ground
of marital status against spouses married in community of property as
opposed to spouses married out of community of property. The court
agreed with Applicant and ordered amendments to section 18(b) of the
Act.
DISSOLUTION
OF CIVIL
MARRIAGES

1
Identify and discuss the legal
consequences of the dissolution
of a civil marriage. Apply the
relevant principles to a given set
of facts with reference to legal
authority.
The dissolution of a marriage has both personal and patrimonial
consequences for spouses. In terms of South African law there are
three ways in which a marriage may be dissolved (Conje and Heaton,
2010):

1. By the court setting aside a voidable marriage

2. By the death of one or both spouses (the personal consequences of

the marriage automatically terminate. The patrimonial consequences
will be determined by the prevailing matrimonial property system)

3. Through a divorce order

Most of the personal consequences of marriage will be terminated
when the marriage ends

E.g. the consortium omnis vitae (the totality of rights, duties and
advantages accruing to spouses) is dissolved, and spouses no longer
have the rights and responsibilities that flow from the marital
consortium

Common law: Right to spousal maintenance came to an end when

the marriage was dissolved

Modern law: It is possible for a former spouse to claim ongoing

maintenance in terms of the Divorce Act or the Maintenance of
Surviving Spouses Act (dissolved by death after 1 July 1990)
MAINTENANCE OF
SURVIVING
SPOUSE
The Maintenance of Surviving Spouses Act 27 of 1990 allows spouses to
claim against the estate of the deceased spouse. Such claims will be for the
provision of reasonable maintenance needs until the surviving spouse’s
death or remarriage, should they be unable to provide for their needs on
the strength of their own means and earnings (Skelton and Carnelley,
2011).
In terms of section 3 of the Act, courts will take the following factors into
account when determining the reasonable maintenance of the surviving
spouse:
1.The amount in the estate of the deceased spouse available for
distribution to heirs and legatees
2.The existing and expected means, earning capacity, financial needs and
obligations of the survivor
3.The standard of living of the survivor during the subsistence of the
marriage and his or her age at the death of the deceased spouse
The claim for maintenance of the survivor has the same order of
preference as a claim for maintenance of a dependent child and should
these claims compete with one another, the court will reduce the claims
proportionally (Skelton and Carnelley, 2011).
 In Feldman v Oshry NO and Another 2009 (6) SA 454
(KZD) the court held, inter alia, that the lump-sum
payments in terms of the Maintenance of Surviving
FELDMAN Spouses Act 27 of 1990, was not permissible.
It was also held that the quantum of maintenance
v OSHRY must be reasonable and not extravagant, even in the
case of the wealthy.

NO AND On appeal, in Oshry v Feldman 2010 (6) 19 (SCA), the

deceased estate was not large enough to
accommodate the surviving spouse’s claim and the
ANOTHER court held that Mrs. Feldman did not have to rely on
the financial generosity of her sons and that she was
still in need of additional maintenance. The court
accordingly awarded her additional maintenance
 Intestate Succession
• Should an individual pass away without leaving a valid last will and
testament or should he/she leave a valid will which is only applicable to
certain of his/her assets, the estate of the individual will be dealt with in
accordance with the rules of the Intestate Succession Act 81 of 1987,
provided that the estate is solvent.
• This situation is also referred to as a division upon intestacy and the
surviving spouse and children of the deceased will always benefit first
(Jamneck and Rautenbach, 2012).
• Should there be no surviving spouse or no descendants, then the extended
family of the deceased such as parents, siblings, nieces, nephews, aunts
and uncles will qualify to inherit from the deceased’s estate. Intestate
succession is limited to blood relations, with the only two exceptions being
the surviving spouse and adopted children.
• When ascendants (i.e., parents, grandparents etc.) do come into
consideration, a 50/50 split is always done between the parents of the
deceased before any further division is done.
• Moveable property (i.e., household furniture, vehicles, shares etc.)
devolves according to the law of intestate succession of the country where
the deceased was domiciled at the time of his/her death and immovable
property (i.e., fixed property) devolves according to the intestate succession
law of the country where it is situated (Jamneck and Rautenbach, 2012).
 Grounds for
Divorce &
Economic
Consequences
of Divorce