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Marriage

There are 3 important and popular forms of marriage and which are:

Marriage in community of property, the normal ante nuptial contract marriage and the accrual marriage.

Marriage in community of property

  1. The cash, property and assets of each party are joined into one community estate and each party has an equal 50% claim thereon.
  2. The cash, property and assets acquired by either spouse during the marriage goes into the same pot and each party has a 50% claim thereon.
  3. Any marriage which takes place after 1984 is governed by the matrimonial Property Act 88 of 1984. So far as joint assets are concerned spouses may not without the other's written consent:
  • alienate, mortgage, burden with a servitude or confer any other real right in any immovable property nor alienate, cede or pledge any shares;
  • withdraw money held in the name of the other spouse;
  • institute or defend legal proceedings except disputes concerning their separate property or in respect of the spouses professional trade. After 1984 there was joint administration and consent was required in certain matters. These aspect will not be dealt with in detail.

Assets excluded from the community estate
  • Gifts and inheritances are excluded from the community of property and from the community of profit and loss.
  • Property excluded by separate ante nuptial contract.
  • Fideicommissary, usufructuary and similar property is excluded by reason of the personal nature of such property rights.
  • Benefits payable to the wife under the Friendly Societies Act 25 of 1956.

Ante nuptial contract marriages

Traditional ante nuptial contract marriages are almost a converse of community of property marriages as demonstrated by the following:
  1. Whatever property belongs to each spouse is held separately by that spouse throughout the marriage.
  2. Whatever is brought in by each spouse including donations and inheritances falls into each spouse's estate.
  3. Each spouse controls his/her own estate exclusively without interference from the other spouse although each has a duty to contribute to the household necessities according to his/her means.

Acrual System

This was introduced by the Matrimonial Property Act.

Workings of the accrual system

On the death of the spouse, the spouse's estate with the greatest accrual (growth) must pay to the spouse's estate with the smaller accrual (growth) half the difference in the amount of the accruals of the greater and lesser estates subject to the adjustment of commencement values by the Consumer Price Index, for example ;

On commencement of the marriage:

Estate of Wife:   20 000

Estate of Husband:   100 000

Consumer Price Index: 310

On dissolution of the marriage:

Estate of Wife:   100 000

Estate of Husband:   200 000

Consumer Price Index: 550

Calculation

Adjustment of commencement values:

Husband:   550/310 x 100 000 = 177 500

Wife:         550/310 x 20 000 = 35 500

Husband End value: 200 000
Wife End Value:       100 000
Less:
Husband: 5 000 (Solatium received by Husband)

Wife:       50 000 (Inheritance received by wife)
______________________________

Husband Nett end value: 195 000
Wife Nett end value:          50 000
______________________________


Calculate accrual:

Husband Nett end value: 195 000
Wife Nett end value:          50 000

Less:
Husband adjusted commencement value: 177 500
Wife adjusted commencement value:          35 000

______________________________

Husband Accrual: 177 500
Wife Accrual:          35 000
______________________________

Divide accrual:

Husband's accrual: 17 500

Less:

Wife's accrual:        14 500
______________________________

               3 000
______________________________

The wife has a claim for R1 500 against the estate of the husband

The ante nuptial contract records the commencement value of the spouses estates and as indicated in the example above the starting value of all assets must be adjusted by the Consumer Price Index to date of termination.

Exclusions from the accrual system

Inheritances, legacies and donations received by a spouse during the marriage are excluded. Insurance policies are taken into account in the calculation of the accrual.

Matrimonial Property Act 88 of 1984 legalised donations between spouses. This meant that for estate duty purposes the value of the donated assets was not calculated at the date of the donor's death but instead the value when it was originally given. Accordingly such donations could viably peg estate growth.

Household necessities:

  1. Community marriages In community marriages each party has a right under common law to enter into a contract relating to household necessities.
  2. Marriages out of community of property The individual spouses must contribute towards household necessities according to each one's financial means (not according to income).


Marriage / Divorce

The maintenance of surviving spouses:

The maintenance of surviving spouses provides that the surviving spouse can claim from the deceased estate of the other spouse reasonable maintenance taking into account age, earning capacity, standard of living, existing and expected means and financial needs of the surviving spouse, as well as the size of the deceased's distributable estate are factors to be taken into account in determining what is reasonable maintenance.

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