Marriages and Mattrimonial Property Law Flashcards
Spouse
The partner of a person listed in any circumstances for the purpose of Income tax, Estate duty and Donations tax
Types of spouses
- Partner in marriage or customary union recognised in terms of laws of the Republic
- Partner in Union recognised as a marriage in accordance with the tenets of any religion
- Partner in a same-sex or heterosexual union which the Commissioner is satisfied is intended to be permanent.
Marriage Act 25 of 1961
- Prescribes formalities when it comes to marriage and certain marriages which are prohibited
- Monogamous heterosexual marriage
(no same-sex marriages)
Civil Union Act 17 of 2006
Monogamous heterosexual and same-sex marriages
Recognition of Customary Marriages 120 of 1998
- Customary marriages
- Monogamous and polygamous heterosexual marriages
(no same-sex marriages)
BEFORE RCMA (pre 15 November 2000)
- Did not enjoy same status as civil marriages (Marriage Act, 25 of 1961)
- Women were not allowed to:
2.1 own property
2.2 sue or be sued in court, or exercise the power of contract. - Women could not
3.1 negotiate or terminate their marriages,
3.2 have legal custody of their children.
Marriage AFTER RCMA requirements
- Both spouses must be above the age of 18 years
- Both spouses must agree to be married to each other under customary law.
- The marriage negotiations, rituals and celebrations must be according to customary law.
- Lobola is not a necessary requirement for the validity of the customary marriage
- Wife and husband are equals and are subject to the matrimonial property system governing their marriage.
What is the status and capacity of spouses (wife)? (RCMA)
Acquire assets (buy);
Dispose of assets (sell, donate);
Enter into contracts;
Litigate (bring an action in a court of law);
The wife also keeps any rights and powers that she might have at customary law
Proprietary consequences & Contractual capacity BEFORE RCMA
Governed by customary law
Monogamous unions deemed to be in community of property
Proprietary consequences & Contractual capacity AFTER RCMA
- Monogamous- marriage in community of property and of profit and loss unless such specifically excluded in ANC
- Matrimonial Property Act applicable to customary marriage in community of
property - Polygamous – written contract (all interested parties
matrimonial property regimes
- marriages WITHOUT antenuptial contract
IN community of property - marriages WITH antenuptial contract
INCLUDING accrual system, and - marriages WITH antenuptial contract
EXCLUDING accrual system
Antenuptial Contract (ANC)
- a written contract between two people who are about to marry,
- setting out terms of possession of assets, treatment of future earnings, control
- of the property of each and potential division if the marriage later gets dissolved.
IN COMMUNITY OF PROPERTY
- NO ANC = Automatically in community of property.
- The two spouses DO NOT have two distinct estates a JOINT estate is created.
- Spouse only owns half of the joint estate.
- on the death of a spouse only ONE half of the joint estate would be subject to estate duty.
- On the termination of the marriage (death or divorce) the joint estate is shared equally between the spouses. Irrespective of their contributions.
Assets can only be excluded from the Joint estate if
Separate ANC
Bequests in terms of a WILL where property is excluded from joint estate
Distributions in terms of a TRUST where property is excluded from joint estate
DONATIONS and gifts on the condition that it is excluded from joint estate
A USUFRUCT that accrues to a person married IN community of property falls outside the joint estate.
Any funeral benefits paid to surviving spouse
bequeaths a community asset to a person other than the surviving spouse (COP)
this would result in shared equal ownership between the beneficiary and the surviving spouse
