Matrimonial Property Regimes

Matrimonial Property Regimes

Introduction

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;

• Bind himself as surety.

A spouse shall not without the consent of the other spouse-

• Alienate, pledge or otherwise burden any furniture or other effects of the common household forming part of the joint estate;
• Receive any money due or accruing to that other spouse or the joint estate by way of-
• Remuneration, earnings, bonus, allowance, royalty, pension or gratuity, by virtue of his profession, trade, business, or services rendered by him;
• Damages for loss of contemplated supra;
•  Inheritance, legacy, donation, bursary or prize left, bequeathed, made or

•  awarded to the other spouse;

• Income derived from the separate property of the other spouse;
• Dividends or interest on or the proceeds of shares or investments in the name of the other spouse;
• The proceeds of any insurance policy or annuity in favour of the other spouse;
• 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 certain paragraphs of the Act.
• The consent required may, except where it is required for the registration of a deed registry, also be given by way of ratification within a reasonable time after act concerned.
• The consent required for the performance of the acts 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) and (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.
• Notwithstanding the provisions of subsection (2) (c), a spouse may without the consent of the other spouse: sell listed securities on the stock exchange and cede or pledge listed securities in order to buy listed securities. Alienate, cede or pledge a deposit held in his name at a building society or banking institution or Building Society shares registered in is name.
• In determining whether a donation or alienation does not or probably will not unreasonably prejudice the interest of the other spouse in the joint estate, the Court shall have regard to the value of the property donated or alienated, the reason for the donation or alienation, the financial and social standing of the spouses, their standard of living and any other factor which in the opinion of the Court should be taken into account.
• When a spouse enters into a transaction with a person contrary to the provisions of subsection (2) or (3) of this section, or an order under section 16 (2), and –
• That person does not know and cannot reasonably know that the transaction is being entered into contrary to those provisions or that order, it is deemed that the transaction concerned has been entered into with the consent required in terms of the said subsection (2) or (3), or while the power concerned of the spouse has not been suspended, as the case may be;
• That spouse knows or ought reasonably to know that he will probably not obtain the consent required in terms of the said subsection (2) or (3), or that the power concerned has been suspended, as the case may be, and the joint estate suffers a loss as a result of that transaction, an adjustment shall be effected in favour of the other spouse upon the division of the joint estate

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.

General Provisions

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

• A Court may on the Application of a spouse, if it is satisfied that the interests of that spouse in the joint estate is being or will probably be seriously prejudiced by the conduct or proposed conduct of the other spouse, and that other persons will not be prejudiced thereby, order the immediate joint estate in equal shares or on such other basis as the Court may deem just.

• A Court making such an order may order that the community of property be replaced by another Matrimonial property System, subject to such conditions as it may deem fit.’

Martin Vermaak

Director