Matrimonial Property Regimes
Matrimonial Property Law regulates the rules and principles that determine the financial consequences of divorce and marriage. The Matrimonial Property Act 88 of 1984, which came into effect on 1st November 1984 states there are three forms of matrimonial property regimes in South Africa, namely:
- Marriages in community of property;
- Marriages out of community of property without the accrual system; and:-
- Marriages out of community of property with the accrual.
It is essential that potential spouses understand the consequences of the matrimonial property regimes prior to them getting married to protect their futures as the systems are very different from one another and lastly, they must ensure that they execute their decision in terms of the correct procedures.
Powers of spouses
Subject to the provisions of subsections (2), (3) and (7), a spouse in a marriage in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse.
Such a spouse shall not without the written consent of the other spouse-
- Alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate;
- 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;
- 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;
- Alienate or pledge any jewellery, coins, stamps, paintings or any other assets forming part of the joint estate and held mainly as investments;
- 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;
- Enter, as a consumer, into a credit agreement to which the provisions of the National Credit Act, 2005 apply, as a “consumer” and “credit agreement” are respectively defined in that Act, but this paragraph does not require the written consent of a spouse before incurring each successive charge under a credit facility, as defined in that Act;
- As a purchaser enter into a contract as defined in the Alienation of the Land Act, 1981 (Act No -.68 of 1981), and to which provisions of that Act apply;
A spouse shall not without the consent of the other spouse-
Want of consent, and suspension of powers of spouse
- When a spouse withholds the consent required 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 the Chapter.
Litigation by or against spouses
- 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-
- In respect of his separate property;
- For the recovery of damages, other than damages for patrimonial loss, by reason of the commission of a delict against him;
- In respect of a matter relating to his profession, trade or business;
- 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.
- If costs are awarded against a spouse in legal proceedings instituted or defended by him without the consent required, the Court may, with due regard to the interest of the other spouse in the joint estate and the reason for the want of consent, order that those costs be recovered from the separate property, if any, of the first mentioned spouse and, in so far as those costs cannot be so recovered, that they be recovered from the joint estate, in which case the Court may order that upon the division of the joint estate an adjustment shall be effected in favour of the other spouse.
- An Application for the surrender of a joint estate shall be made by both spouses and an Application for the sequestration of a joint estate shall be made against both spouses; provided that no application for the sequestration of the estate of a debtor shall be dismissed on the ground that such debtor’s estate is a joint estate if the applicant satisfies the Court that despite reasonable steps taken by him he was unable to establish whether the debtor is married in community of property or the name and address of the spouse of the debtor.
- Where a debt is recoverable from a joint estate, the spouse who incurred the debt or both spouses jointly may be sued therefore, and where a debt has been incurred for necessaries for the joint household, the spouses may be sued jointly or severally therefore.
Certain damages excluded from community and recoverable from other spouse
Notwithstanding the fact that a spouse is married in community of property-
- any amount recovered by him or her in a way of damages, other than damages for patrimonial loss, by reason of a delict committed against him or her, does not fall into the joint estate but becomes his or her separate property;
- he or she may recover from the other spouse damages in respect of bodily injuries suffered by him or her and attributable either wholly or in part to the fault of that spouse and these damages do not fall into the joint estate but become the separate property of the injured spouse.
Liability for delicts committed by spouses
- When a spouse is liable for the payment of damages, including damages for non-patrimonial loss, by reason of a delict committed by him or when a contribution is recoverable from a spouse under the Apportionment of Damages Act, 1956 (Act No. 34 of 1956), such damages or contribution and any costs, awarded against him are recoverable from the separate property, if any, of that spouse, and only in so far as he has no separate property, from the joint estate: Provided that in so far as such damages, contribution or costs have been recovered from the joint estate, an adjustment shall, upon the division of the joint estate, be effected in favour of the other spouse or his estate, as the case may be.
Power of Court to order division of the estate