In community of property Flashcards
(35 cards)
What is the default matrimonial system in south Africa?
In community of property.
Which case can be used to reference the rebuttable assumption that all the marriages in SA are in community of property?
Eldeisten V Eldeisten
What does the default presumption entails?
That the joint estate is created at the solemnization of the marriage.
When will a marriage not be in community of property?
- When there is a registered antenuptial contract.
- When there is a postnuptial contract.
- Husband lex domicilli matrimonii
- A minor who marries without the parent’s consent.
- Black persons who concluded a civil marriage in terms of section 22(6) of the Black Administration Act without an ANC BEFORE 2 December 1988 AND who, after 14 April 2021, have notified the Director-General of Home Affairs that they still wish their marriage to be OUT of community of property
Which case can be used for reference when we talk about the marriages of black persons?
Sithole and Another v Sithole and Another
What was the decision in Sithole v Another?
The Constitutional Court confirmed that the old law (section 22(6) of the Black Administration Act) was unfair and unconstitutional. All civil marriages of Black people under the old law (before 2 December 1988) are now considered to be in community of property. Whoever wants to change this should write to the director general of the home affairs.
Which case was the BAA found Unconstitutional first before the Sithole case in terms of black persons marriage?
AS v Another and GS v Another
What is the legal nature of a marriage in community of property?
The husband and wife, or spouses, automatically (ex lege) become:
Tied
Co-owners
Of undivided, equal shares
In one joint estate
What forms part of the joint estate?
Every asset, liability, and debt occurred before and after the marriage. Everything that has monetary value
What is meant by saying that the joint estate is not a legal person?
It cannot be sued.
What can be excluded from the joint estate?
- Assets excluded by an antenuptial contract (ANC)
- Assets excluded by a will or donation
If the fruits are not mentioned to be excluded then they are included in the joint estate - Damages from bodily injury caused by the other spouse
- Non-patrimonial damages
- Damages as a result of body injuries caused by the other spouse.
- Personal clothes
- Engagement gifts
- Court cost awards (if not divorced)
- Replacement for any of the above
What is the meaning of fideicommissum?
A fideicommissum is when someone leaves something (like land or money) to one person, but with instructions that it must later go to someone else.W
What if one of the spouses set out a fideicommissum?
While the fideicommissum exists, the farm does NOT form part of any joint estate in which B or C may share. The FIDEICOMMISSARY RIGHT does not fall into the joint estate (as it is a personal right), but the income or fruits of the property do however form part of the joint estate.
What is the meaning of usufruct?
A usufruct is a legal right that allows someone to use and enjoy another person’s property, and keep the profits or income (the fruits) from it — without owning it.
Does usufruct forms part of the joint estate?
USUFRUCTUARY RIGHT does NOT form part of the joint estate if the spouse is married in community of property (as it is a personal right). The income or fruits of the property do, however, form part of the joint estate.
Which case can be used for reference in terms of non patrimonial loss?
Van den berg v Van den berg. (Disability)
Which section regulates non patrimonial loss and bodily injury by the other spouse?
Section 18(a)and (b) of Matrimonial property Act
Which case can be used as reference to bodily harm caused by another spouse?
Van de merwe v Accident fund
What is it meant by antenuptial debts?
Debts that occurred prior to the marriage.
What is the common law rule when it comes to debts that occurred before the marriage?
When you marry someone in community of property, you also marry their debts — including those that existed before the wedding. The source of the debts doesn’t matter
What is the general rule of the debts that occurred during the marriage?
The joint estate is liable for the debts.
What happens in terms of contractual debts that occurred during the marriage?
it depends on whether the spouse has the right or authority to enter into that contract on behalf of the joint estate.
Who must pay delictual debts?
According to Section 19 of the Matrimonial Property Act, the person who caused the delict is liable for the debt. They should pay from the separate estate.
When can the joint estate be liable for delictual debts?
- The spouse who caused the harm has no separate property, or
- The separate property is not enough to cover the debt.
