MATRIMONIAL PROPERTY GUIDE

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MATRIMONIAL PROPERTY GUIDE

• make sure your future is secure

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INTRODUCTION

• So you have decided to take the plunge and to
  finally get married. You have found your sole
  mate and set the date. You have arranged the
  venue, the dress, the caterers, the flowers, the
  marriage officer, the band and even the stag
  parties. You are confident that you have covered
  every aspect of the wedding and then your world
  is shattered when somebody asks whether you have
  decided which matrimonial property regime shall
  regulate your marriage and in particular whether
  you have signed an antinuptial contract. Your
  boat is further rocked when somebody asks whether
  you have decided to include or exclude the
  accrual system. What does this mean do you use it
  at the church ceremony or at the reception
  dinner? The fact of the matter is that it is a
  very important part of your marriage, it is one
  of the very first important joint decisions of
  your marriage. A decision that has to be
  considered thoroughly before you take the big
  plunge. This pamphlet is created to briefly
  explain the different matrimonial property
  regimes in south africa. This pamphlet is a mere
  guideline and it is advised that any questions
  you have be directed to the attorney or notary
  who assists you in this regard.

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THE MATRIMONIAL PROPERTY ACT NO.88 OF 1984

• The Matrimonial Property Law in South Africa is
  primarily regulated by the Matrimonial Property
  Act No. 88 of 1984 (the Act). In terms of the
  Act there are three possible regimes to choose
  from, namely
• 1. In Community of Property
• 2. Out of Community of Property including the
  Accrual system and
• 3. Out of Community of Property excludin the
  Accrual system.

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MARRIAGES IN COMMUNITY OF PROPERTY

• In terms of Section 14 of the Act, a marriage in
  Community of Property is a marriage in which both
  spouses have the same powers with regard to the
  disposal of the assets of the joint estate, the
  contracting of debts which lie against the joint
  estate and the management of the joint estate. A
  marriage in Community of Property is the
  automatic matrimonial property regime, which can
  only be excluded by a written antinuptial
  contract.
• In other words, if you decide to get married and
  you do not conclude an antinuptial contract prior
  to your wedding, your marriage will automatically
  be a marriage in Community of Property, which
  implies that your estate and your wifes estate,
  becomes one estate (the joint estate) and you
  will both have equal (50) share in the assets
  and liabilities.

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POWERS OF SPOUSES MARRIED IN COMMUNITY OF PROPERTY

• In terms of Section 15 (2) (a-h) of the Act, a
  spouse in a marriage in community of property may
  not perform the following juristic acts with
  regard to the joint estate, without the written
  consent of the other spouse namely
• (a) Alienate, mortgage, burden with a servitude
  or confer any other real right in any immovable
  property forming part of the joint estate
• (b) Enter into any contract for the alienation,
  mortgaging, burdening with a servitude or
  conferring of any other real right in immovable
  property forming part of the joint estate
• (c) Alienate, cede or pledge any shares, stock,
  debentures, debenture bonds, insurance policies,
  mortgage bonds, fixed deposits or any similar
  assets, or any investment by or on behalf of the
  other spouse in a financial institution, forming
  part of the joint estate
• (d) Alienate or pledge any jewellery, coins,
  stamps, paintings or any other assets forming
  part of the joint estate and held mainly as
  investments
• (e) Withdraw money held in the name of the other
  spouse in any account in a banking institution, a
  building society or the Post Office Savings Bank
  of the Republic of South Africa
• (f) As a credit receiver enter into a credit
  agreement as defined in the Credit Agreements
  Act, 1980 (Act No.75 of 1980) and to which the
  provisions of that Act apply in terms of Section
  2 thereof
• (g) As a purchaser enter into a contract as
  defined in the Alienation of Land Act, 1981 (Act
  No.68 of 1981) and to which the provisions of
  that Act apply
• (h) Bind himself as surety.

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POWERS OF SPOUSES CONTINUED

• In terms of Clause 15 (3)(a-c), a spouse in a
  marriage in community of property shall not
  without the consent of the other spouse perform
  any of the following juristic acts with regard to
  the joint estate namely
• (a) alienate, pledge or otherwise burden any
  furniture or other effects of the common
  household forming part of the joint estate
• (b) receive any money due or accruing to that
  other spouse or the joint estate by way of
• 1 remuniration, earnings, bonus, allowance,
  royalty, pension or gratuity, by virtue of his
  profession, trade, business, or services
  rendered by him
• 2 damages for loss of income contemplated in 1
  above
• 3 inheritance, lagacy, donation, bursary or
  prize left, bequeathed, made or awarded to the
  other spouse
• 4 income derived from the separate property of
  the other spouse
• 5 dividends or interest on or the proceeds of
  shares or investments in the name of the other
  spouse
• 6 the proceeds of any insurance policy or
  annuity in favour of the other spouse
• (c) donate to another person any asset of the
  joint estate or alienate such an asset without
  value, excluding an asset of which the donation
  or alienation does not and probably will not
  unreasonably prejudice the interest of the other
  spouse in the joint estate, and which is not
  contrary to the provisions of subsection (2) or
  paragraph (a) above.

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CONSENT

• There are certain regulations in the Act
  regarding the aforementioned consent that is
  important to take note of namely
• The consent required for the purposes of
  paragraphs (b) to (g) of subsection (2) and
  subsection (3) m ay, except where it is required
  for the registration of a deed in a deeds
  registry, also be given by way of ratification
  within a reasonable time after the act concerned
• The consent required for the performance of the
  acts contemplated in paragraphs (a), (b), (f),
  (g) (h) of subsection (2) shall be given
  separately in respect of each act and shall be
  attested by two competent witnesses
• The provisions of paragraphs (b), (c), (f), (g)
  (h) of subsection (2) do not apply where an act
  contemplated in those paragraphs is performed by
  a spouse in the ordinary course of his
  profession, trade or business
• A spouse may without the consent of the other
  spouse
• (a) sell listed securities on the stock exchange
  and cede or pledge listed securities in order to
  buy listed securities
• (b) alienate, cede or pledge a deposit held in
  his name at a building society or banking
  institution or building society shares
  registered in his name.
• When a spouse withholds the consent required in
  terms of subsection (2) or (3) of Section 15 or
  when that consent can for any other reason not be
  obtained, a court may on the application of the
  other spouse give him leave to enter into the
  transaction without the required consent if it is
  satisfied, in the case where the consent is
  withheld, that such withholding is unreasonable
  or, in any other case, that there is good reason
  to dispense with the consent.
• If a Court is satisfied that it is essential for
  the protection of the interest of a spouse in the
  joint estate, it may on the application of that
  spouse suspend for a definite or an indefinite
  period any power which the other spouse may
  exercise under this Chapter.

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Litigation by or against spouses

• Section 17 of the Act regulates very important
  factors to take serious heed of regarding
  litigation (Court matters) by or against spouses
  married In Community of Property namely
• (1) A spouse married In Community of Property
  shall not without the written consent of the
  other spouse institute legal proceedings against
  another person or defend legal proceedings
  instituted by another person, except legal
  proceedings
• (a) in respect of his separate property
• (b) for the recovery of damages, other than
  damages for patrimonial loss, by reason of the
  commission of a delict against him
• (c) in respect of a matter relating to his
  profession, trade or business.
• (2) A party to legal proceedings instituted or
  defended by a spouse may not challenge the
  validity of the proceedings on the ground of
  want of the consent required in terms of (1)
  (a-c) above.
• (4)(a) An application for the surrender of a
  joint estate shall be made by both spouses
• (b) An application for the sequestration of
  a joint estate shall be made against both spouses
• (5) Where a debt is recoverable from the joint
  estate, the spouse who incurred the debt or both
  spouses jointly may be sued therefor, and where
  a debt has been incurred for necessaries for the
  joint household, the spouses may be sued jointly
  or severally therefor.

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MARRIAGES OUT OF COMMUNITY OF PROPERTY

• A Marriage Out of Community of Property can only
  be established by the signature and registration
  of an antenuptial agreement.
• The usual antenuptial agreement excludes
  community of property and community of profit and
  loss in other words
• each spouse retains as his or her sole property
  assets owned before the marriage and any assets
  obtained during the marriage
• Each spouse has the full legal capacity to act
  without the consent of the other spouse
• The spouses may freely conclude contracts with
  each other
• The spouses are not liable for each others
  liabilities
• Each spouse only binds his or her estate when he
  or she concludes any agreement with a third
  party
• The spouses are not responsible for each others
  delicts or claims for damages
• Each spouse has the right of appearance and can
  institute or defend any legal action without the
  other spouses consent.

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THE ACCRUAL SYSTEM

• In terms of Section 2 of the Act, every marriage
  out of community of property in terms of an
  antenuptial contract by which community of
  property and community of profit and loss are
  excluded, is automatically subject to the accrual
  system, except in so far as that system is
  expressly excluded by the antenuptial contract.
• The Accrual System means that at the dissolution
  of the marriage subject to the accrual system, by
  divorce or death of one or both of the spouses,
  the spouse whose estate shows no accrual or a
  smaller accrual than the estate of the other
  spouse, acquires a claim against the other
  spouse or his estate for an amount equal to half
  of the difference between the accrual of the
  respective estates of the spouses.
• The accrual of the estate of a spouse is the
  amount by which the net value of his estate at
  the dissolution of his marriage exceeds the net
  value of his estate at the commencement of that
  marriage.
• The Accrual System can best be illustrated with a
  simple example
• A and B intend getting married Out of Community
  of Property with the inclusion of the Accrual
  system
• At the date of signature of the ANC, As
  commencement value (assets) are R50 000-00 and
  Bs commencement value R0-00.
• At the dissolution of the marriage, As estate
  has increased in value and his assets are worth
  R250 000-00 and Bs assets are worth R50 000-00.
• Bs assets has grown the less (accrual is the
  smallest) and has a claim against A for an amount
  equal to half of the difference in growth in
  other words
• (a) R250 000-00 (dissolution value) less R50
  000-00 (commencement value) equals R200 000-00
  (accrual) (B) R0-00 (commencement value) less
  R50 000-00 (dissolution value) equals R50 000-00
  (accrual) thus R200 000-00 less R50 000-00 equals
  R150 000-00 divided by two equals R75 000-00. B
  has a claim of R75 000-00 against A.
• An Inheritance, a legacy or donation which
  accrues to a spouse during the subsistence of the
  marriage does not form part of the accrual of his
  estate unless the ANC, or testator or donor
  stipulates otherwise.

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CHANGE OF MATRIMONIAL PROPERTY SYSTEM

• In terms of Section 21 of the Act, a Husband and
  Wife may jointly apply to a court for leave to
  change the matrimonial property system which
  applies to their marriage.
• The spouses must however satisfy the Court that
• (A) there are sound reasons for the proposed
  change
• (B) sufficient notice of the proposed change has
  been given to all the creditors of the spouses
  and
• (c) no other person will be prejudiced by the
  proposed change.
• If the Court is satisfied regarding the
  abovementioned requirements, order that the
  former matrimonial property system shall no
  longer apply and authorize the spouses to enter
  into a notarial contract which is referred to as
  a Postnuptial Agreement by which their future
  matrimonial property system is regulated on such
  conditions as the Court may think fit.
• The Court referred to in this Section is a High
  Court, which can become a costly exercise and
  therefore it is imperative that the correct
  choice regarding your matrimonial property system
  is made at the commencement of the marriage.

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THE ANTINUPTIAL AGREEMENT

• Section 87 of the Deeds Registries Act. No 47 of
  1937 provides that an antenuptial contract
  executed in the Republic shall be attested by a
  notary and shall be registered in a deeds
  registry within three months after the date of
  its execution or within such extended period as
  the court may on application allow.
• In other words the antinuptial agreement has to
  be signed by the spouses and notary prior to the
  wedding and registered thereafter. Spouses may
  authorise another person to sign an antinuptial
  agreement on their behalf in terms of a written
  special power of attorney.
• Deeds Office charges are payable.

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DISCLAIMER

• The information provided in this pamphlet is for
  general guidance only. The information does not
  constitute legal advice and you use it at your
  own risk. De Kooker attorneys accepts no
  liability for damages arising from the use of the
  information. If legal advice is required on any
  issue, you should contact your attorney or you
  may contact us.

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CONTACT US

• For any further information you may contact us at
  [phone] or you may send us a facsimile at
  [phone] or an email at brendan_at_dkattorneys.
  co.za or you may view our website at
  www.dkattorneys.co.za