The variable consequences of marriage Flashcards
General principles (27 cards)
What is the meaning of a matrimonial property regime?
Refers to the system of rules that governs how property is owned, managed, and divided between spouses during a marriage and in the event of divorce or death.
What is the default rule in terms of determining the matrimonial property regime?
In the absence of an antenuptial contract, the matrimonial property regime is determined, in terms of private international law, by the law of the husband’s domicile at the time of the marriage.
What is the Latin word for the law of the husband’s domicile at the time of the wedding?
the lex domicilii matrimonii
Which case dealt with the question of which legal system governs the matrimonial regime system?
Frankel’s estate v The Master 1950
What happens if they do not want the default matrimonial regime system?
The couple can sign an antenuptial contract, which can allow them to choose their own regime system.
What happens if the spouses choose to marry out of the community of property but with community of profit and loss?
The spouses keep their own separate property from before the marriage, but share what they acquire during the marriage, including profits and losses.
What happens if the spouses choose to marry in community of property?
- A joint estate is created
- It consists of the liabilities and assets of spouses.
3.It doesn’t matter if they have acquired it during or before the marriage. - System of equal management applies.
What happens if the marriage is out of community of property and out of community of profit and loss, and without the accrual system?
It is the most independent matrimonial property system, where each spouse keeps their property entirely separate, both during the marriage and when it ends (by divorce or death).
What happens if the marriage is out of community of property and out of community of profit and loss, BUT with the accrual system?
It means that each spouse keeps their own property and is not responsible for the other’s debts or income during the marriage.
But — when the marriage ends (by divorce or death) — they share fairly in the growth (accrual) of each other’s wealth made during the marriage.
The person whose wealth grew more must give half of the difference in growth to the other.
What regulates the accrual system?
Matrimonial Property Act 88 of 1984
Where does the immutability principle apply?
In the common law
What does the immutability principle entails?
This principle meant that once spouses chose a matrimonial property system at the time of marriage, they could not change it later.
Which section regulates the ability to change the matrimonial system by agreement?
Section 21 of the matrimonial property act 88 of 1984
What are the requirements for changing the matrimonial system by agreement?
- There must be a consensus and a joint application to the high court by both spouses.
- A draft NOTARIAL CONTRACT setting out the proposed new matrimonial property system
- Sound reasons for the change.
- Sufficient notice of the proposed change to the creditors.
- Proof that no other person will be prejudiced.
What happens if the application to change the matrimonial system in terms of section 21 is granted?
The final notarial contract should be registered in the Deeds registry.
What was decide in Ex parte Kros 1986 about whether the change of the matrimonial system applies retrospectively?
It was held that the change apply retrospectively.
What was decided in Ex parte Oosthuizen (1984) about whether the change of the matrimonial system applies retrospectively?
It was held that the change does not apply retrospectively.
What was decided in Ex parte Burger (1995) about whether the change of the matrimonial system applies retrospectively?
The court did not clearly decide.
What happens if one of the spouses wants to change the matrimonial system while they are currently married in a community of property?
They must apply to the High Court for the division of the joint estate if the interests of that spouse will be prejudiced by the conduct of the other spouse, and also with proof that the third party will not be prejudiced.
Which section regulates the application of change to the matrimonial system by one spouse?
Section 20 of the matrimonial act 88 of 1994
What discretion does the court have to allow such division?
-In equal shares or any other basis; OR
- Replacement of the matrimonial property system as it deems fit.
Which case can be used for reference when it comes to changing the matrimonial system from in community to out of community in terms of section 21 of the Act
Leeb v Leeb 1999
Which section can the spouses married out of the community of property with the accrual system use when they want to change their matrimonial system?
Section 8 of the Act
What is meant by Extra-judicial alteration by spouses
Extra-judicial alteration refers to any attempt by spouses to change their matrimonial property system without going through the courts
