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.

 

 

 

 

 

Notes Chapter 4 & 5

MODULE 3: Chapters 4&5

 

 

1.       VOID: 

 

·                 Definition – void civil marriage is a civil marriage that never comes into

existence. Therefore the position is as if a marriage never took place.

·                 Null and void – non-compliance with material requirements of a civil marriage.

·                 Non-compliance of formal requirements – exception ito Marriage Act 25 of 1961 = error, oversight regarding question/declaration/giving right hand done in good faith – valid. Also Ex parte Dow (garden).

·                 Formal requirements that do render invalid = non marriage officer, minor with no consent, no witnesses.

·                 Material requirements that do render invalid = same sex, already married, related, under age of puberty, mentally ill.

 

CONSEQUENCES:

 

·                 If void ab initio (from outset) does not affect status. No consequences of the marriage takes place, children are born extra-marital, etc.

·                 Either party/3^rd party may raise point- do not need a court order although a declaratory order better. (No discretion).

·                 Cannot ratify except – Min of Home Affairs (sec 26) empowers minister to ratify where not consent.

·                 Also exception with putative marriages in that some consequences attach to marriage even if void.

·                 Bona fide party may claim delictual action for satisfaction from other party.

 

 

2.       VOIDABLE:

·                 Definition – grounds are present before/ at time of wedding – on which the court can set aside the marriage.

·                 Grounds for setting aside = minority ( Sec 24A(1) Marriage Act ) if not consent of parents, material mistake (identity), duress, undue influence, stuprum ( pregnant as result of extra marital sexual intercourse with another man before marriage and husband is unaware), impotence, sterility ( Venter v Venter NB  that not only sterile also conceal it).

 

 

CONSEQUENCES:

 

·                 Takes place, stay in force and have all legal consequences of a valid marriage until set aside by court order.

·                 Court order is essential and not declarative as in the case of void marriage.

·                 Therefore affect status during subsistence.

·                 If set aside – RETROACTIVE.  (Meaning changes as if marriage did not take place.

·                 Some interest are however protected – 3^rd parties, children Sec 39 Children’s act.

·                 Divorce vs. annulment: grounds present before or at marriage, divorce after.

·                 Annulment cannot claim maintenance, redistribution or forfeiture as Divorce Act is not applicable.

 

 

3.       PUTATIVE

 

·                 Definition: when one party /both enter into civil marriage while being unaware at that time that marriage void.

·                 Eg not aware brother and sister (within prohibited degree of relation).

·                 Requirements are therefore: one /both parties unaware of defect, all formalities had to be complied with, solemnized.

 

CONSEQUENCES:

·                 Although putative marriage is void ab initio it has some legal consequences for as long as a party/both bona fide.

·                 As soon both are aware the marriage stops being putative.

·                 Can never declare a putative marriage valid, can purely declare that relationship is putative with result that as from date to date of knowledge certain consequences.

·                 Children – born within marriage.  When application made to declare putative =then court also make declaratory order that children are within marriage.  (Bam v Bhabha) and court can make order as to parental responsibilities and rights that is in the child’s best interest.

·                 Patrimonial = if both bona fide and no ANC (IN), If one party bona fide = then treated (IN) if to benefit of Bona fide party. 

·                 Except if married in community at time of 2^nd marriage – then his asserts fall in estate of 1^st marriage ( Zulu v Zulu)

·                 If ANC= if both bona fide or to interest of bona fide party (OUT). Mala fide party must return all benefits received in terms of the ANC.

 

 

 

Notes Chapter 3

MODULE 2 NOTES :

 

The legal requirements for the conclusion of a valid civil marriage:

 

1.       Definition:

Traditionally defined a civil marriage =    legally recognized

                                                            Life-long voluntary union

                                                            Between one man and one women

                                                            To the exclusion of all other parties.

 

Consensus (agreement) = contract, but contracts are entered into to create obligations which is not the main purpose of a marriage, hence undesirable to describe a civil marriage as a type of contract.

 

2.       Critic:

 

1. The high divorce rate mocks the “life-long” union; therefore rather legally recognized voluntary union between one man and one woman…..

 

Difference civil and customary/Hindu /Muslim marriage = that civil union ONE MAN ONE WOMEN, whilst remainder allows for polygny.

 

2. Same sex marriages ito Civil Union Act, act 17 of 2006.

 

 

3.       Requirements

 

3.1           Capacity to act

• Agreement therefore needs meeting of minds, therefore must be able to act.
• Totally incapable = infants, mentally ill or limited capacity ( minors)
• Prodigal – uncertain what stance if prodigal get married without consent of curator - Pienaar v Pienaar’s Curator and Mitchell v Mitchell – view is that should be able to get married without consent. (in/out?)
• Mentally ill – if at moment clear is valid (lucidum intervallum).if declared mentally ill onus of proof shifts to him to proof –whilst if not declared mentally ill the onus on the one who alleges. Curator may not consent to a civil marriage on behalf of a mentally ill.
• Placed under curator ship – incapable of managing own affairs, Pienaar case = if understand nature can marry. If no curator appointed yet then test-understand consequences or not.
• Minors – 7-18 years of age have ltd capacity, therefore must have consent of parents/guardian. Consent must be in writing (sec 24(1) Marriage Act 25 of 1961. Sec 27 –if suspect not of age may refuse to solemnize the marriage unless proof (id).

-        Consent required: legitimate – both parents, even if parents are divorced.

-        Illegitimate – if both have guardianship – both consent, otherwise only mother.  If the mother a minor then her guardian’s consent.

-        Sec 18(5) Children’s Act 38 of 2005 states all persons with guardianship must consent.

-        Legal guardian – in will /if no will high court. Guardian cannot consent to marriage between him and minor. 

-        Min of Home Affairs – Sec 26(1) of Marriages Act boy below 18 and girl under 15 obtain written consent of minister.  Still require parents consent additional to Minister Consent. If no consent null and void, unless minister ratify it. Ratify if ito Sec 26(2) regards desirable and in interest. 

-        Presiding officer- children’s court – Marriage act provides if parents consent cannot be obtained then presiding officer of children’s court.  Not grant if consent is withhold. If withhold must go to High court.  Presiding must enquire if ANC and assist. If presiding refuse consent then High court. Must ask presiding before high court sec 25 (4).

-        High court –one/both parents/guardian/presiding officer withhold consent –Sec 25(4) Marriage Act can apply to high court. FOR THIS PURPOSE THE MINOR IS REGARDED AS HAVING CAPACITY TO LITIGATE. Grant if 2 tests are met together , namely one if refusal is without good reason and 2 if in minor’s interest. B v B (not separate tests). Can also order marriage regime.

 

• No consent required:

-        Previously entered into a valid marriage.

 

• Effect of absence of consent:

-        Without consent of minister = nul and void Sec 26(2) unless minister ratify same. 

-        Without consent of parents/guardian/presiding officer = voidable. May be set aside on application by either minor parent before becomes a major, or three months after become a major.  Only set aside if convinced that dissolution is in minor’s interest.

 

Patrimonial effects without consent:

-        Sec 24 Matrimonial property act – if set aside: court may make an order as it deems fit.  Look at factors eg age, financial means etc Sec 24(1) guidelines.

-        If not set aside:  Sec 24(2)  consequences the same as if were of age when got married.

-        Before commencement of the act? :

 Neither sec 24 marriage act or 24A matr property act clear.

 

 

 

 

 

3.2           Agreement

Ask at ceremony – if minor must also personally confirm.

 

* Mistake – only material mistake excludes agreement. – identity and juristic act ‘s nature.

Marriage of convenience – Maartens v Maartens for residency.  Mistake about name, religion not grounds.

 

* Misrepresentation – voidable if of serious nature eg sluprum ( pregnant with another man and was unaware of it ), sterile or impotent.  

 

* Duress: voidable. Smith v Smith –women dazed. Lacked will.

 

* Undue influence: voidable.

 

3.3           Lawfulness

 

• If existing marriage/union: civil marriages are monogamous. – void can be putative if believed he was divorced.
• Same sex: civil union act allow same sex civil unions, civil marriages still only opposite sex. If reassignment surgery and reg as such then may marry women.
• Adoptive parents: the adopted children can marry if not blood related, but parents may not marry the children.
• Prohibited degrees of relation: void. Consanguinity ( blood relation) direct line ( between ascendants and descendants daughter, grandmother) or collateral line ( related not by direct line but by common ancestor eg cousins, brothers). Affinity ( relationship between married person and blood relations of his/her spouse as a result of marriage. Also either direct (husband and mother in law)or collateral line( husband and brother in law). 

- No brother/sister, grandfather /grandchild, uncle /niece. Cousins may marry.  Therefore blood relations in collateral line may not enter into civil marriage with each other if either is related to common ancestor within 1^st degree.  Degree- count number of people without common ancestor. , nor affinity in direct line. In collateral line - 

• No direct line marriages:
• Legal guardians: only if consent of high court.
• People different race groups: immorality and prohibition of mixed marriages amendment act 72 of 1985- sec 7 provides that DG of home affairs may direct in writing that a marriage is valid. Before DG issue same other spouse must consent to it etc page 31.

 

3.4           Formalities

 

• Marriage officer – all magistrates, comm. And justice of piece are ex officio for district where hold office. Diplomats etc may be appointed by min of home affairs. , also by denomination –church.
• Outside RSA – only if both parties are RSA citizens and domiciled in RSA.
• During ceremony – personally present, anytime and any day (not obliged other time than 08h00-16h00).  Must be in church /building/house with open doors presence of at least 2 witnesses. (Sec 29(2) marriage act- ex Parte Dow (in garden – still legal), must ask specific questions  separately – any objection etc. parties must reply in positive, give right hand declared lawfully married.  If error or oversight –still valid if in good faith.
• Registration – must sign reg, 2 witnesses and marriage officer immediately after the wedding then send marriage reg to regional/district representative of dept of home affairs. Copy of entry in register serves as prima facie proof (face of it). Fail to reg does not effect validity.  If no cert other evidence can proof marriage.