@ a glance

Unit 8 (Learning outcome 8) –

Marital property
(This is simply a tool to guide you while studying from your textbook)

Learning outcome 8:
Identify the different matrimonial property systems in South African and explain the consequences
of each system.

Assessment criteria:
8.1 Grasp the concept of marital property and matrimonial property systems.
8.2 Identify the three most important matrimonial property systems in South African law.
8.3 Explain how the law deals with delicts committed against or by a spouse married in
community of property.
8.4 Explain how section 15 of the Matrimonial Property Act regulates the administration of
the joint estate for spouses married in community of property.
8.5 Discuss the reasons for and workings of the accrual system.
8.6 Apply the above principles to a given set of facts with reference to authority.

Study:

Chapter 8; paragraph 1 - 10 TB

This unit analyses and explains the different matrimonial property regimes in South

African law.

1
What is matrimonial property?
 Property owned by people who are married to each other.
 The chosen matrimonial property system regulates the couple’s debts.
 Unit 8 is only applicable to civil marriages entered into according to the
Marriage Act.

Why is it important to have rules about marital property?

 The chosen matrimonial property system will have an impact on the following
scenarios:
o When the marriage end through death or divorce.
o If one or both spouses become bankrupt.
o When spouses sell or donate things to third parties.

Three matrimonial property systems:

The three most important matrimonial property systems are:

1. In community of property, in community of profit and loss.

2. Out of community of property, out of community of profit and loss without
accrual.
3. Out of community of property, out of community of profit and loss with
accrual.

In COP, in community Out of COP, out of Out of COP, out of

of profit and loss community of profit community of profit
and loss and loss with the
accrual system
Couples share everything - Spouses share no Section 3(1) of
Assets and debts. property. Matrimonial Property Act
Ownership of all property provides that at the end
They are tied co-owners is separate. of the marriage, the
of the joint estate and They don’t share profit spouse whose estate has
everything in it, in and losses at all. grown more than the other
undivided and indivisible spouse’s estate must share
half shares. half of his or her
comparative gains with the
other spouse.

2
 UNIT 8 (A) – IN COMMUNITY OF PROPERTY,
INCLUDING PROFIT AND LOSS

Marriage in community of property

COP - meaning The in-community-of-property-system is the default

matrimonial property system in South African civil
law.
This means that if a couple marries in South Africa,
they will be married in community of property
(automatically), unless:
1) The couple signs an antenuptial contract which
states that they do not wish to be married
in community of property i.e. they are
excluding community of property and profit and
loss.
2) The husband is domiciled in another county
where the default matrimonial system is out
of community of property.

Sharing Couples share everything - Assets and debts.

everything - the
basic rule They are tied co-owners of the joint estate and everything
in it, in undivided and indivisible half shares. See TB p. 286.

When the marriage ends, the joint estate is automatically

divided in half.

Each spouse receives their half-share, regardless of how

much money they put into the joint estate or how much
they have spent during the marriage.

Example: Study the example on p 285 TB.

Separate 1) Assets excluded by antenuptial contract.

property: NB –
Par. 4.3 of the TB.

3
 (This does NOT mean that they are now married
out of COP, it simply means that they have
excluded certain assets from COP by contract).
Note that “the place will replace the thing, and the
thing replaces the money” principles (Pretium
succedit in locum rei and res succedit in locum
pretii) is applicable.

2) Assets excluded in a will or deed of donation.

Note that “the place will replace the thing, and the
thing replaces the money” principles (Pretium
succedit in locum rei and res succedit in locum
pretii) is applicable.

3) Delictual damages from third parties for non-

patrimonial loss.
Note that the act is silent about whether the “the
place will replace the thing, and the thing replaces the
money” principles (Pretium succedit in locum rei and res
succedit in locum pretii) applies.
This may mean that replacements of items bought with
the money received for non-patrimonial loss, may
actually fall in the joint estate!

4) Delictual damages compensation for bodily injury

inflicted by the other spouse. See later under
paragraph 5 in TB.

5) Other exclusions – Engagement and wedding gifts,

usufructury or fideicommissary interest in a
property, costs awarded in a matrimonial action
that doesn’t dissolve the marriage, property
rescued from forfeiture under the Prevention of
Organised Crime Act 121 of 1998.

Liability for debts See par. 4.4 in TB for a detailed explanation.

 This is the main disadvantage of an in-community-

of-property system.
 If one of the spouses goes into business and gets
into debt, creditors can recover all the money

4
 owed to them from the joint estate. This means
that the couple could be left with nothing.
 In marriages out of community of property, the
other spouse's estate is protected from the
bankrupt spouse’s creditors.
Note: This property will now fall under the separate
property of a spouse.

Delicts committed When a spouse pays delictual damages to a third party

by or against Section 19 of the Matrimonial Property Act –
spouses married in adjustment at division of matrimonial property.
COP
When third parties pay delictual damages to one of the
spouses
Section 18(a) of the Matrimonial Property Act - Non-
patrimonial damages do not compensate for losses incurred
by the joint estate – they are personal to the injured
spouse.

When spouses commit delicts against each other:

 Section 18(b) of the Matrimonial Property Act -
Spouses may sue each other in delict for ALL damages
that result from bodily injuries caused by the other
spouse.

DELICTUAL CLAIMS:

When a spouse pays When third parties pay When spouses commit
delictual damages TO a delictual damages TO delicts against each
third party one of the spouses other:

General principle of law: Section 18(a) of the Section 18(b) of the

no person should be held Matrimonial Property Matrimonial Property
responsible for another Act Act
person’s wrongdoing.  Non-patrimonial  Spouses may sue
damages do not each other in delict
Section 19 of the compensate for for ALL damages
Matrimonial Property losses incurred by that result from
Act –
the joint estate – bodily injuries
caused by the other

5
1. First pay the they are personal to spouse: that is,
damages from the injured spouse. spouses married in
spouse’s separate  Non-patrimonial community of
property damages do not fall property may now
2. If not sufficient into the joint estate sue their husband or
money, pay from – it will be the wife in delict for
joint estate – AND separate property both patrimonial and
make an adjustment of the spouse to non-patrimonial
at the division of whom they are damages resulting
matrimonial awarded. from bodily harm.
property (i.e. death  Patrimonial damages  NB CASE:
or divorce). will fall into the Summarise Van der
joint estate. Merwe v Road
Accident Fund 2006
(4) SA 230 (CC)
 TB: Par 5.3
 Adjustment will
also apply here.

Administration of See par. 6 in TB for a detailed explanation. Also study

joint estate the tables set out in your textbook on p. 296 - 299

 Section 15 of the Matrimonial Property Act

regulates the administration of the joint estate
for couples married in community of property.
 Section 11 of the Matrimonial Property Act
abolishes marital power – husbands and wives are
now in the same legal position.
 Study the section in the textbook, and use the
attached table to help you.

Transactions that need spousal consent

Spouses need the consent of the other spouse for certain
important activities that might have significant impact on
the joint estate:
1) Section 15(2) activities: written consent (more
formal)
2) Section 15(3) activities: consent does not need to
be in writing (informal consent)

6
What is the legal effect of section 15(2) and section
15(3) transactions performed without spousal consent?
1) Contracts are not binding on the spouse unless
ratified within a reasonable time. See par. 6.5.1!
2) Spouses do not have the legal capacity to pass
ownership. See par. 6.5.2!

Remedies of non-consenting spouse

1) Rei vindication – Spouses still owners, can claim
items back with RV.
2) Condictio sine causa specialis – Enrichment
remedies where a person receives money from a
spouse, but the money became the property of the
third party as a result of commixtio.
3) Actio Pauliana utilis – When a husband donated
property from a joint estate in deliberate fraud of
his wife’s interests.
4) Delictual remedies.

When a spouse deals with the joint estate in an

irresponsible way
When one of the spouses deals with the joint estate in an
irresponsible way, the law provides the following
protection:
1) Immediate division of the joint estate in terms
of section 20
2) Suspension of a spouse’s powers in terms of
section 16(2)
3) Interdicts
4) Adjustment
5) Prodigal declaration

7
NB: Protection of third parties? “Deemed” consent in terms of section 15
(9)(a):

“Deemed” consent: Section 15 (9)(a) – Third party does not know and cannot
reasonably know that a particular transaction is deemed to
have been entered into with the required spousal consent.

Summarise the case studies discussed in par. 6.7 p.

304 – 308 in detail. YOU MUST INCLUDE THIS
SAMMARY AS PART OF YOUR STUDY NOTES. Look at
all the examples set out in the textbook.

Capacity to Capacity to litigate when married in community of property

litigate when 1) Section 17 of the Matrimonial Property Act
married in COP 2) Spouses require written consent of the other
spouse before they can bring or defend a court
case.

8
 UNIT 8 (B) – OUT OF COMMUNITY OF PROPERTY,
PROFIT AND LOSS

Marriage out of Community of Property without ACCRUAL

 General rule: spouses share nothing; they are almost like legal strangers to
each other.
 If spouses wish to be married out of community of property, they must
conclude an antenuptial contract.
 If they do not want the accrual system to be applicable to their
marriage, they must also exclude the accrual system in their antenuptial
contract.
 The reciprocal duty to support each other and to contribute to household
necessaries are still applicable to marriages out of community of property.

Sharing nothing?  Each spouse keeps their separate estate.

 Study the example on p. 311 of your TB.
 Freedom to manage own estate.
 They do not require the other spouse’s consent.
 If sued, they must pay damages from their own
estate.
 They share household necessaries. (See unit 7)

The antenuptial They must conclude an anc to be married out of COP.

contract Special notarial contract which they enter into BEFORE
they marry.
Must conclude anc to marry out of COP.

What can be included in the antenuptial contract?

Examples?

Sharing expenses How are spouses held liable for household necessaries?

Study par 8.3 in conjunction with relevant sections in unit 7.

9
 What does “joint and several liability” mean?

The power to bind a non-contracting spouse automatically

apply as it is an invariable consequence of marriage.

Right of recourse between spouses?

Sharing property Spouses can become joint owners of property – just like any
other two people can for example buy a car together

Even a joint bank account as co-owners, but not the same as

COP.

UNIT 8(C) - Marriages out of COP including the

ACCRUAL
 ‘Accrual’ means ‘growth’ or ‘increase’.
 This system allows the spouses to share the financial gains or growth of
their estates that accrued during the marriage.
 See example on page 313 TB.
 Why did this system come about in 1984?

Section 3(1) of Matrimonial Property Act provides that at the end of the marriage, the
spouse whose estate has grown more than the other spouse’s estate must share half of
his or her comparative gains with the other spouse.

 Study the steps (method) on how accrual is calculated in DETAIL! (Par 9.3 in
the TB)

 Study the example of Lindiwe and Oliver in DETAIL!

10
Calculating the Calculation of accrual
accrual: 1) Calculate how much each spouse’s estates has
grown during the marriage (if a spouse’s estate has
decreased in value there is no growth, thus the
accrual value is zero).
2) If one spouse’s estate has grown more than the
other spouse's estate, work out how much more
one spouse’s estate has grown that the other.
3) The spouse whose estate has grown less is entitled
to half of the amount calculated in (2) above. In
other words, this spouse is entitled to half the
amount by which the growth of the other spouse’s
estate exceeds hers.

Exclusions from the  Does everything fall inside the accrual? NO – there
accrual: are exclusion, set out in Sections 4(1)(b) and 5.

Exclusions:
1) Non-patrimonial delictual damages
2) Asset excluded from the accrual in the
antenuptial contract.
The replacement rule will also apply.
3) Inheritance, legacy or donation which the
spouse receives during the marriage, UNLESS
the WILL says / person making the donations
says - that it falls INSIDE the accrual. (Note:
this is opposite of how it works in COP marriage).
The replacement rule applies.
4) Donations between spouses are NOT taken into
account when calculating the accrual.
Study the example of Lindiwe and Oliver.

Commencement What is the commencement value of an estate?

values?
Must accrual calculations take the buying power of money
into account? Yes, so the commencement value must be
adjusted to reflect inflation. How? Consumer Price Index

Study the example on p. 318, showing how the CPI is used to

adjust the commencement values.

What if a spouse is in debt at the start of the marriage?

11
 Study the example on p. 318 in detail! Set the format of the
calculation out and practice it.

Other ways of See example p. 319 – 320 example.

calculating how much
money one spouse
must pay the other:

Protecting a  Spouses do not have the same protection as in a

spouse’s interests COP marriage.
om the accrual  Each spouse has full power and capacity to sell their
assets or give them away.
 No spousal consent requirement.

When can a spouse use section 8(1) to apply for the

immediate division of the accrual?

What must be proved by the spouse applying for the

immediate division? See par. 9.6
1) The division is necessary to protect the
interests of the applicant spouse.
2) No third party will be prejudiced as a result of
immediate division.

Court can also order adjust the accrual payment by giving

the ‘innocent’ spouse more than half of the difference
between the two accruals.

Liability for Spouses contribute to household necessaries pro rata –

household based on their financial means.
necessaries Jointly and severally liable to third parties. (See also Unit 7)
The antenuptial Spouses must have an anc to exclude community of property,
contract but need not include the accrual, it applies automatically.

Parties who have an anc will AUTOMATICALLY be married

subject to the ACCRUAL system.

12
Changing the matrimonial property system:
Section 21 of the Matrimonial Property Act makes provision for the changing of the
chosen matrimonial property system AFTER marriage.

• The parties must jointly apply to court.

• The court may grant this application if it is satisfied that:

1) There are sound reasons for the proposed change,

2) The spouses have given sufficient notice of the proposed change to all
their creditors, and
3) No other person will be prejudiced by the proposed change.

13