MATRIMONIAL PROPERTY MATRIMONIAL PROPERTY GUIDEGUIDE

““make sure your future is make sure your future is secure”secure”

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.

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; and3. Out of Community of Property excludin the Accrual system.

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 wife’s estate, becomes one estate (‘the joint estate”) and you will both have equal (50%) share in the assets and liabilities.

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.

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.

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.

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.

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 other’s 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.

The second marriage Out of Community of Property includes the accrual system, which will more fully be discussed in the pages that follow.

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, A’s commencement value (assets) are R50 000-00 and B’s commencement value R0-00.

At the dissolution of the marriage, A’s estate has increased in value and his assets are worth R250 000-00 and B’s assets are worth R50 000-00.

B’s 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.

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.

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.

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.

CONTACT US For any further information you may contact us at (011) 763-3889 or you may send us a facsimile at

(011) 763-3927 or an email at brendan@dkattorneys.co.za or you may view our website at www.dkattorneys.co.za