Notes Chapter 6

VARAIBLE CONSEQUENCES – IN COMMUNITY OF PROPERTY

CHAPTER 6:

 

 

Cases where community of property does not arise:

 

In RSA there is a Rebuttal presumption in community of property – can be rebutted if proven that:-

·                 ANC

·                 Valid Post Nuptial contract

·                 Husband’s lex domicilli at time of marriage provides that marriage is OUT. In RSA husband’s lex domicilli dictates which matrimonial system operates.  Therefore if husband from England at time of marriage and no ANC –the marriage would be OUT in terms of English law.  If later immigrate to RSA - still OUT.

·                 Black persons entered into civil marriage governed by section 22(6) of the Black Administration Act, 38 of 1927. in terms of act auto OUT unless joint written declaration before a magistrate/com within 1 month prior to the marriage that they want to marry IN.

 

Characteristics of Community of Property:

 

1. Universal Partnership:

 

·                 spouses become tied co-owners in undivided and indivisible half-shares of all assets and liabilities at time of marriage and what accrue after the marriage;

·                 At divorce –all liabilities are settled from joint estate and balance distributed equally;

·                 Estate Sayle v Com of Inland Revenue.

 

 

Content of Universal Property:

 

Assets: anything with monetary value-e.g. immovable property, vehicles, money, jewellery, clothing, interests in companies, goodwill, furniture, art, appliances, pension interest, policies with surrender value.

 

Assets excluded:

 

·                 In ANC – can exclude, fruits of assets fall in joint estate unless excluded, (Any asset replaces excluded asset also falls outside joint estate, e.g. if a sum of money is excluded in ANC and she then buys a house- the house is excluded.)  pretium succedi in locum rei, res sucedi in locum pretii

·                  In Will/ deed of donation: - same maxim applies – if inherit money buy car-car excluded. Again fruits IN unless expressly excluded.

·                 Subject to fideicommissum / usufruct: fruit are IN, because it is a personal right which cannot alienate.  Usufructs cannot be replaced but fideicom can be replaced as such some of opinion that fideicom replacement asset falls within estate.  

·                 Jocalia (engagement gifts): replacement assets fall in joint estate.

·                 Benefits under Friendly Society Act, act 25 of 1956: Sec 17 benefits due to a married women OUT. Probable unconstitutional as discriminates against sex and marital status

·                 Non-Patrimonial damages: Sec 18(a) of Matrimonial Property Act OUT. The replacement of assest of non –patrimonial damages is not excluded.

·                 Personal injury inflicted by other spouse: Sec 18 of Matrimonial Prop Act also OUT. Only amount of damages are excluded not necessarily replacement assets.

·                 Cost in matrimonial action: cost awarded- then outside the joint estate.

·                 Proceeds excluded ito Prevention of Organized Crime Act: sec 50(1) proceeds of unlawful activities may be forfeited to the state. The forfeited property vests in curator bonis – sells then asset recovery account.

 

 

Attachment of separate assets:

 

Du Plessis v Pienaar – creditors of souses married IN can recover from joint

estate. Exclusion of an asset does not protect asset in case of insolvency.

 

 

Liabilities:

 

Jointly liable therefore cannot stand surety for each other’s debt.

 

Includes maintenance debts - unclear if applicable to ANC delictual debts.

 

 

Debts incurred during subsistence of the marriage:

·                 Contractual debts = incurred during marriage – must recover from joint estate or separate assets of spouses. Depends on whether consent of other party was obtained (or required).

·                 Delictual debts = Sec 19 Matrimonial Property Act – must recover 1^st from separate property –if insufficient then from joint estate.  When division then adjustment must be made to other spouse’s estate.

 

 

 

 

 

Debts outstanding at dissolution of joint estate:

·                 Contractual debts = not paid off can only be recovered from original debtor or 50% can be claimed from each.  If one pays all he/she has right to claim 50% from other.

·                 Delictual debts = ONLY CLAIM FROM ORIGINAL DEBTOR.

 

 

 

2. Administration of joint estate:

 

Before Matrimonial property act husband had marital power – incur debt etc.

Restriction and violation of dignity as were inferior to husbands.

Sec 11 of MPA abolished marital power –replaced with equality. Did not affect acts before act.

 

Abolishment of Marital power –on / after 1 Nov 1984 – before had 4 years to registration of notarial contract.  Or jointly approach court and ask to change matrimonial property system.

 

Principle of equal administration of joint estate;

 

Marital power replaced by equal admin of joint estate.  Both equal manageing joint estate – but practical cannot every time request consent –buy bread etc. therefore any party can perform juristic act =but some acts require consent. Therefore both restricted eg:

 

Both consent required: Sec 15(2), 15(30, 17(1) MPA.  Different kinds of consent -4 types:

 

1. Prior written consent & attested by 2 witnesses iro each transaction separately – (cannot sign power of attorney)

·                 Selling/buying immovable property ( reg @ deeds office).

·                 Suretyship

No ratification –no power of attorney for all acts.

 

2. Written consent & 2 witnesses iro separate transactions:

·                 sell/buy a mortgage or servitude ( real right of immovable property)

·                 receiving credit ito National Credit Act -34 of 2005.

·                 Buy immovable property under contract of sale.

 

The act can be ratified – no power of attorney for all acts.         

 

 

 

 

3. Written consent without further requirements:

 

·                 sell/cede shares /stocks/deposits or investment

·                 sell/pledge assets held mainly as an investment eg jewels , coins.

·                 Withdraw money of other spouse

·                 Institute/defend legal action which does not relate to profession of spouse.

 

4. Oral/Tacit consent:

·                 Sell furniture part of common household;

·                 Receiving money owed to other spouse for remuneration, income,  interest on dividends etc.

·                 Inheritance donations, prizes etc.

·                 Donation to a 3^rd party.

 

Acts where consent is not necessary:

 

Sec 15 ( 2) –actions in normal course of profession.

 

Protective measures

 3^rd parties: sec 15(9) did not know or suspect married in community of property – deemed to have been entered with the required consent.

Look at Distiilers Corp Ltd v Modise – surety read legally competent = accept has spouses consent.

 

Spouses:

Statutory remedies:

·                 Sec 15(9) provides that if estate suffer loss –rectify when division.

·                 Dispensing with consent – if cannot obtain and court satisfied good cause sec 16(1).  Cloete v Cloete = wife refusal found refusal was reasonable.

·                 Suspension of spouse’s power: suspend definite/indefinite period

Must be prejudicial, protect his interest.

·                 Immediate separation of estate: if serious prejudice sec 20 ask for immediate separation of joint estate and no other person will suffer prejudice.

 

Common law remedies:

·                 based on fraud

·                 the interdict: intends to alienate an asset of the joint estate  with intention to prejudice the other spouse.

·                 Must not have a suitable alternative remedy.

·                 Common law right @ dissolution of joint estate:  if already alienated then other spouse may have resource when dissolving the marriage.

·                 Actio Pauliana utilis: if alienated fraudulently claim this action from 3^rd party .

·                 Declare a prodigal:  prejudice dignity and privacy.

 

Capacity to litigate:

Sec 17 regulate capacity of spouses to litigate if married IN.

 

Sec 17(4) – insolvency against both.

Joint debts – sec 17(5) = jointly /severally.