Marriage out of COP

Question 1

What are the main features of marriage out of the community of property?

Answer 1

1. Usually there is no joint estate
2. An antenuptial contract should be signed before the marriage.
3. Each spouse manages their own estate separately.

Question 2

which type of joint estate can the partners ask for?

Answer 2

Joint estate (profit and loss)
joint ownership of joint assets(house)

Question 3

When is the marriage out of community of property?

Answer 3

1. When there is a valid and registered ANC
2. Change of matrimonial property system according to S20 of the Matrimonial Property Act
3. Black persons who concluded a marriage before 2 December 1988 without a prescribed statement and ANC, and who, after 14 April 2021, notified the director general of the home affairs in writing that they want to keep the matrimonial system in consequence of Sithole vs Sithole.
4. When the husband is domiciled in the country where the marriage will be out of community of property if there is no ANC, and they have no ANC.

Question 4

What are the forms of marriage out of community of property?

Answer 4

1. With the accrual system
2. Without accrual system

Question 5

what happens if the marriage is out of cop with the accrual system?

Question 6

what happens if the marriage is out of the cop without the accrual system?

Answer 6

2. There is no sharing of profit and loss

Question 7

What does the marriage out of COP require?

Answer 7

An antenuptial contract that expressly excludes the accrual system and community of property and loss.

Question 8

When is the redistribution of assets possible?

Answer 8

only possible if the marriage was concluded before 1 November 1984. This is according to section 7 of the Divorce Act

Question 9

What regulates the marriage out of COP?

Answer 9

common law

Question 10

What is the spouses capacity to act if they are married out of cop?

Answer 10

1. They have the full capacity to act; there is no juristic acts that require the consent of the other spouse.
   - Enter into contracts independently
   - Alienate the spouse’s assets without their consent; however, the spouse can claim it back from the third party.
   - Responsible for their own delicts
   - Debts

Question 11

When does the ANC become a prerequisite?

Answer 11

1. For a marriage out of cop

Question 12

what is the purpose of the ANC?

Answer 12

The purpose is not to create legal obligations between spouses but to manage how property and finances will work in the marriage, by possibly excluding the normal consequences of the marriage.

Question 13

When does the ANC come into effect?

Answer 13

The moment the marriage has been validly contracted.

Question 14

When does the ANC lapse?

Answer 14

When all the terms and conditions :
1. Becomes irrelevant or impossible to fulfill
2. Have been fulfilled
3. terminated by a court order.

Question 15

Who can the ANC be amended by?

Answer 15

By permission of the High Court with sound reasons.

Question 16

In which ways can the ANC be amended?

Answer 16

1. Rectification
2. Inherent justification

Question 17

How can ANC be cancelled?

Answer 17

In terms of section 21 of the Matrimonial Property Act

Question 18

Who usually drafts the ANC?

Answer 18

Legal professionals however the parties can draft it themselves.

Question 19

What does section 86 of the Deeds Registries Act says?

Answer 19

No formalities are needed for the contract to be valid between the spouses themselves.

Question 20

What formalities should be followed for the contract to be binding on third parties as contained in S87 of the Deeds Registries Act?

Answer 20

1. The contract must be in writing.
2. If the contract is executed in SA, it must be signed by a Notary
3. After being attested, the contract must be registered in the deeds registry within 3 months.
4. If the contract is executed outside SA, it must be executed in terms of the law of that country however, it should still be registered in the deeds registry of SA within 6 months.
5. The contract can only be registered late if the high court’s permission has been obtained (by application)

Question 21

What happens if the parties do not comply with the formalities of S87 of Registry Deeds Act?

Answer 21

the parties will, as far as THIRD PARTIES are concerned, be married IN community of property.

Question 22

What is meant by postnuptial compliance with prescribed formalities?

Answer 22

This refers to the situation whereby the parties DID enter into an ANC before marriage, but failed to comply with the formalities

Question 23

When does S88 of the registry of deeds apply?

Answer 23

When the parties want to apply to court for postnuptial execution and registration?

Question 24

What are the requirements set out in S88 of the Registry Deeds Act for the postnuptial execution?

Answer 24

1. There must have been a consensus between the parties about the terms and conditions of the contract.
2. There must be reasonable grounds for failure to comply with the formalities.
3. The parties must apply within a reasonable time after the realization of failure to comply with the formalities.

Question 25

What are the normal requirements needed for the contract to be valid?

Answer 25

1. Consensus 2. Legal capacity 4. Possibility of performance 3. Certainty 6. Legality 5. Formalities

Question 26

What will happen if a minor gets into an antenuptial contract without consent from their parents?

Answer 26

1. The contract will be void. 2. The court will not register it 3. The minor will be married in COP 4. If they want to change their matrimonial system, they should apply to the competent court.

Question 27

In whose presence should the minor sign the antenuptial contract/ be assisted?

Answer 27

1. Notary 2. May be assisted by the parent. 3. If the presiding officer's permission to marry is required, such officer must assist the minor with the contract?

Question 28

Which categories of terms are included in the ANC?

Answer 28

1. Standard terms 2. Other permissible terms 3. Illegal terms.

Question 29

What is the general rule for the terms of the ANC?

Answer 29

The parties may include any terms as long as they are not illegal or impossible

Question 30

What are the terms included in ANC?

Answer 30

1. A term excluding the community of property. 2. A term excluding the community of property and loss 3. The accrual system 4. A succession clause 5. Donations 6. Right of recourse. 7. Illegal terms

Question 31

What is the term excluding community of property about?

Answer 31

It excludes pre-marital assets and liabilities, and everyone retains their estate as if they not married.

Question 32

What is the term excluding property, community of profit and loss about?

Answer 32

It entails that each party is individually liable for both assets and debts obtained/incurred after the marriage.

Question 33

What is the term of accrual system about?

Answer 33

This term applies to all marriages outside the community of property unless excluded in the ANC. It states that spouses retain their pre-marital assets and liabilities but divide the growth obtained during the marriage.

Question 34

What is the term of succession clause about?

Answer 34

A special clause in an antenuptial contract (ANC) that sets out who will inherit from the spouses when one of them dies — for example, stating that the surviving spouse will inherit everything, or that specific children will be heirs.

Question 35

What is the succession clause term about?

Answer 35

This is a clause in the ANC that sets out who should inherit the spouse's estate when they have deceased. The parties can change this agreement by signing a joint will.

Question 36

What is the donation/marriage settlements about?

Answer 36

Donations/gifts between the spouses or third parties

Question 37

What is the advantage of including the donation clause in the ANC?

Answer 37

to obtain protection the offered by Section 27 of the Insolvency Act

Question 38

What can the donation be subject to?

Answer 38

1. Time 2. Reversion clause

Question 39

When will the reversion clause not be allowed?

Answer 39

If it goes against good morals, for example, if it spouse tries to undermine the marriage, or if the donor intentionally causes a breakup just to get the gift back

Question 40

Which section can forfeit a gift?

Answer 40

Section 9 of the divorce Act

Question 41

What is the term of Right of recourse about?

Answer 41

The spouse who contributed more in terms of household necessities may exercise the right of recourse against the other spouse to claim back the extra money they spent.

Question 42

What's the catch to the right of recourse?

Answer 42

If married after 1 November 1984, the parties may agree to this in advance. If married before, it is automatically included.

Question 43

What is the illegal terms about?

Answer 43

Adultery