@ a glance
Unit 9 (Learning outcome 9) –
(This is simply a tool to guide you while studying from your textbook)
Learning outcome 9:
Identify and discuss the legal consequences of the dissolution of a civil marriage.
Assessment criteria:
9.1 Have a brief overview knowledge of the personal consequences of the dissolution of civil
marriages.
9.2 Explain the division of the marital property upon the death of one of the spouses.
9.3 Discuss the claims of the surviving spouse to the deceased estate.
9.4 Apply the above principles to a given set of facts with reference to authority.
Study:
Chapter 9; paragraph 1 - 3 TB
This unit requires the student to identify and discuss the legal consequences of the
dissolution of a civil marriage
1
Personal consequences of dissolution of a marriage
Most of the personal consequences of a marriage will be terminated when
the marriage ends.
However, some personal consequences will still exist even after termination
of the marriage:
Retention of majority status if the marriage ends before spouse(s) turn 18.
Relationships of affinity created by marriage are not dissolved when
marriage ends.
Division of the marital property when the marriage is dissolved
by DEATH
RECAP:
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.
Marriages in community of property
Spouses are equal co-owners of the marital estate.
2
When the marriage terminates, each party will receive half of the joint
estate.
See example on page 326 of TB.
Marriages out of community of property without accrual
Each spouse has a separate estate.
The estate of the spouse who dies is the deceased estate.
See example on page 327 of TB.
Marriages out of community of property with accrual
Accrual is calculated and paid at the end of the marriage.
When one of the spouses dies, the accrual of both spouses must be
calculated and the appropriate sum transferred the spouse whose estate
shows less accrual.
See example on page 328 of TB.
Claims of the surviving spouse:
Claims based on inheritance –
Summarise par. 3.1 of TB in detail!
(Key points)
Very often, spouses leave their entire estate to their surviving partner.
If the deceased spouse dies intestate, the estate will devolve in terms of
intestate succession according to the Intestate Succession Act.
If a person dies intestate and is survived by a spouse but not by a
descendant, the surviving spouse inherits the entire estate.
If a person dies intestate and is survived by a spouse as well as descendants,
the surviving spouse inherits the greater amount of a ‘child’s share’ of the
intestate estate or a predetermined amount fixed by the Minster of Justice.
Refer to class discussion.
3
Claims based on the Maintenance of Surviving Spouses Act –
Summarise par. 3.2 of TB in detail!
(Key points)
Even if a surviving spouse does not inherit from their deceased spouse, it is still
possible for the surviving spouse to lodge a claim for maintenance form the
deceased spouse’s estate in terms of the Maintenance of Surviving Spouses Act:
For his or her reasonable maintenance needs,
until death or remarriage,
to extend that they are unable to provide for themselves,
taking into account:
1) the standard of living of surviving spouse during marriage,
2) age of surviving spouse at time of death of deceased spouse,
3) amount in deceased estate available for distribution,
4) existing and expected means, earning capacity and financial needs and
obligations of surviving spouse,
5) claims will be curtailed by the amount available in the deceased estate;
and the claim of the surviving spouse will be reduced / denied if he or she
has other means of support.
Refer to class discussion.
student@work
Question 1:
Candice and Leroy were married out of community of property, with the accrual
system. Leroy died suddenly of a heart attack on Thursday night. Candice is a
fifty-year-old housewife who has never worked and has no skills. When the will is
read, it becomes apparent that Leroy had a mistress named Angel. Leroy leaves
everything he owns to Angel in his will.
Discuss whether Candice will be able to claim maintenance from Leroy’s
estate. Use the IRAC method to answer the question.
Question 2:
Explain:
a) Can a surviving spouse inherit intestate from a deceased spouse?
b) Distinguish between testate and intestate.
c) What is meant by the “child’s share”?
d) Use an example to illustrate how the child’s share is calculated.
