Change from community of property to ANC, and ANC without accrual to with accrual PDF Print E-mail

 

EX PARTE KRÖS EN 'N ANDER 1986 (1) SA 642 (NC)

1986 (1) SA p642

Husband and wife - Proprietary rights - Variation of  matrimonial property regime in terms of s 21 (1) of Act 88 of 1984 - Court competent to order variation (from marriage in community of property to one out of community) with retrospective effect. Where s 21 (1) of the Matrimonial Property Act 88 of 1984 empowers the Court to vary married parties matrimonial property regime upon application, the Court is competent to order that such variation (in this instance, from marriage in community of property to one excluding such community) shall have retrospective effect.

 

EX PARTE COERTZEN ET UXOR 1986 (2) SA 108 (O)

1986 (2) SA p108

Husband and wife - Proprietary rights - Application in terms of s 21 (1) of Matrimonial Property Act 88 of 1984 to alter matrimonial property regime - Notice of the application to applicants' creditors omitted to mention the date on which the application would be brought and also that application would be made for abolition of the marital power  - Creditors possibly prejudiced thereby - Application not granted but rule nisi issued with directions for publication.

The applicants were married in community of property before the coming into operation of the Matrimonial Property Act 88 of 1984 and applied in terms of s 21 (2) of the Act for the alteration of their matrimonial property regime and for leave to conclude a notarial contract with the abolition of the marital power. The applicants' attorneys had written a letter to their creditors which notified them of the application but omitted to mention the date on which the application would be brought and also neglected to mention their intention to apply for abolition of the marital power. The Court held that, solely on the ground that no mention had been made of the date of the application, the application could not be granted but that creditors could also be prejudiced by not having been informed of the abolition of the marital power. The Court further held that in order to protect creditors who had not been given notice, a rule nisi ought to be issued and published in a newspaper and copies of the notice ought to be sent by registered post to the creditors.

 

EX PARTE ENGELBRECHT ET UXOR 1986 (2) SA 158 (NC)

1986 (2) SA p158

Husband and wife - Proprietary rights - Change of matrimonial property regime in terms of s 21 (1) of Matrimonial Property Act 88 of 1984 - "Sound reasons" for change as intended in s 21 (1) - Means facts which are convincing, valid and anchored to reality - Evidence as to parties intention and agreement concerning the matrimonial property regime reached before their marriage is relevant and admissible - Court granting application for change of matrimonial property regime where parties had before their marriage intended to marry out of community of property and had after the marriage (in community) maintained their intention in that each had administered their separate estates.

Evidence of the parties intention and agreement before their marriage in connection with their matrimonial property regime is relevant and admissible in such an application - not to admit such evidence amounts to preventing to a certain extent a party from furnishing sound reasons to the Court why the change in the matrimonial property regime ought to be granted.

The Court granted the applicants' application for the change of their matrimonial property regime from that of a marriage in community of property to one out of community of property with exclusion of the marital power where it appeared that the parties had, before their marriage, agreed to marry out of community of property with exclusion of the marital power (but had to marry in community of property because they had not concluded an Ante Nuptial Contract - they thought that they only had to inform the marriage officer of their intention), that the second applicant was being hampered by her limited contractual capacity in the administration of assets bequeathed to her and her children by her former (deceased) husband and that both applicants had kept and administered their assets separately.

 

EX PARTE LOURENS ET UXOR AND FOUR OTHER SIMILAR CASES 1986 (2) SA 291 (C)

1986 (2) SA p291

Husband and wife - Proprietary rights - Application in terms of s 21 (1) of Matrimonial Property Act 88 of 1984 to alter matrimonial property regime - Procedural guidelines  B set out.

The Court, faced with five applications in terms of s 21 (1) of the Matrimonial Property Act 88 of 1984, all of which were incomplete in one respect or another, set out the following guidelines for such applications in the Cape Provincial Division: Notice of the applications must be given to the Registrar of Deeds in terms of s 97 (1) of the Deeds Registries Act 47 of 1937. The draft notarial contract which it is proposed to register must be annexed to the applications. Notice of intention to make the application must also be published in the Government Gazette and Die Burger and Cape Times newspapers at least two weeks before the date on which the application will be heard. The date upon which the application will be heard must be specified in the published notice, setting out what steps an objector to the order sought must take and where the application and draft contract can be inspected. In addition, at least two weeks' prior notice of the application must be given by certified post to all creditors, whether actual or contingent. A list of such creditors, verified by affidavit, shall be included in the application and proof that such notice has been given to them must be provided by an affidavit to which are annexed the relevant certificates of posting. Sufficient information regarding the assets and liabilities of the couple concerned must be set out in the application to enable the Court to judge whether or not there are sound reasons for the proposed change and whether or not any other person will be prejudiced by the proposed change. It should also be stated whether or not either of the applicants has been sequestrated in the past and, if so, when, and in what circumstances. The case number of any rehabilitation application must be furnished. It should also be stated whether  or not there are any pending legal proceedings in which any creditor is seeking to recover payment of any alleged debt due by the couple or either of them. Care must be taken to motivate fully the proposed change in the existing matrimonial property system. Applicants must explain why no other person will be prejudiced by the proposed change. In any event, the order sought, and the contract which it is proposed to register, shall contain a provision which preserves the rights of pre-existing creditors. The application must disclose where the parties are domiciled and, if they are not resident there when the application is made, where they are resident. If there has been a recent change in domicile or residence it should be disclosed so that the Court can consider whether the application has been brought in the appropriate forum and/or whether or not additional notice of the application should be given. Ordinarily the application should be brought in the Court in whose area of jurisdiction the parties are domiciled and ordinarily resident.

 

EX PARTE SENEKAL ET UXOR 1989 (1) SA 38 (T)  A

1989 (1) SA p38

Husband and wife - Proprietary rights - Variation of matrimonial property regime in terms of s 21(1) of Matrimonial Property Act 88 of 1984 - Application for - Court competent to make such an order even if marriage solemnised in a foreign country. The Court is competent to make an order in terms of s 21(1) of the Matrimonial Property Act 88 of 1984 (for the variation of the matrimonial property regime of the parties) even if the marriage of the parties was solemnised in a foreign country.

 

EX PARTE LE ROUX ET UXOR  A EX PARTE VON BERG ET UXOR 1990 (2) SA 70 (O)

1990 (2) SA p70

Husband and wife - Proprietary rights - Application in terms of s 21(1) of Matrimonial Property Act 88 of 1984 to alter matrimonial property regime - Procedural guidelines set out. The Court, faced with two applications in terms of s 21(1) of the Matrimonial Property Act 88 of 1984, held that the guidelines as set out  E in Ex parte Lourens et Uxor 1986 (2) SA 291 (C) should henceforth also be observed in the Orange Free State Provincial Division.

 

EX PARTE OOSTHUIZEN EN 'N ANDER 1990 (4) SA 15 (E)  A

1990 (4) SA p15

Husband and wife - Proprietary rights - Variation of matrimonial property regime in terms of s 21(1) of Matrimonial Property Act 88 of 1984 - Court is not empowered in terms of s 21(1) to alter couple's matrimonial property regime with retrospective effect. Section 21(1) of the Matrimonial Property Act 88 of 1984 does not empower the Court to alter a couple's matrimonial property regime with retrospective effect.

Ex parte Krös 1986 (1) SA 642 (NC) criticised and not followed.

 

HONEY v HONEY 1992 (3) SA 609 (W)  A

1992 (3) SA p609

Husband and wife - Proprietary rights - Variation of property regime in terms of postnuptial contract - Contract not entered into with leave of Court as provided for in s 21(1) of the Matrimonial Property Act 88 of 1984 - Repeal in s 22 of Act of prohibition against donations between spouses not automatically abrogating common-law rule that parties may not by postnuptial agreement amend matrimonial property system, whether such amendments intended to have effect inter partes only or not - Contract void and unenforceable. The proprietary rights of the parties to the instant divorce action were governed by an antenuptial contract, which specified that the marriage would be subject to the accrual system in terms of the provisions of chap 1 of the Matrimonial Property Act 88 of 1984 ('the Act'). Some three years after the marriage a further written agreement was concluded between the spouses, in terms of which the parties purported to cancel their antenuptial contract. This later contract was not registered in the deeds registry nor entered into with the leave of the Court as provided for in s  E 21(1) of the Act. The plaintiff (the wife) sued the defendant for divorce and, relying on the postnuptial contract, inter alia, claimed an order declaring that she was entitled to retain as her property the assets listed therein as hers. An order was subsequently granted in terms of Rule 33(4) that the issues regarding the validity of the postnuptial contract be adjudicated separately from the other issues. At a pre-trial conference it was agreed that the only issue to be determined was whether the  postnuptial agreement was enforceable as between the parties inter se for the purpose of determining their proprietary rights in the action. It was contended on behalf of the plaintiff that the common-law rule that postnuptial amendments of the matrimonial property system were void had its ratio in the prohibition of donations between spouses. Section 22 of the Act however provided that 'no transaction effected before or after the commencement of this Act is void or voidable merely because it amounts to a donation between spouses', so that, so it was contended, the ratio for the invalidity of postnuptial contracts varying the matrimonial property system no longer existed (at least as far as the parties inter se were concerned). Thus, according to the plaintiff, the present postnuptial contract was valid as far as the parties themselves were concerned. The defendant contended that the postnuptial contract was invalid. Held, that s 2 of the Act made it clear in so many words that the accrual system could, when the parties were married out of community of property and with the exclusion of the community of profit and loss, only be  excluded by antenuptial contract.

Held, further, that the provisions of s 2 governed both antenuptial contracts that were duly registered (and which were therefore valid vis à vis third parties) and those which were not (and were therefore valid only inter partes), so that the plaintiff's contention that s 2 did not affect contracts valid only inter partes (such as the present postnuptial contract) could not be upheld.

Held, further, with regard to the plaintiff's contention that s 22 of the  I Act had abolished the ratio for the invalidity of postnuptial contracts which varied the matrimonial property system, that the common-law authorities regarded the rule that the matrimonial property system was immutable as a substantive rule with a separate existence and not as a mere application of the rule prohibiting donations between spouses.

Held, further, that the applicable case law also did not assist the plaintiff's case, providing no authority for the proposition that a postnuptial contract was effective inter partes provided that it did not  amount to a prohibited donation. Held, further, that the repeal of the prohibition against donations between spouses accordingly did not automatically abrogate the rule that parties may not postnuptially amend an antenuptial contract, whether such amendment was intended to have effect inter partes only or not. Held, accordingly, that the instant postnuptial contract was invalid and unenforceable as between the parties inter se. Adjudication in terms of Rule 33(4) of the Uniform Rules of Court on the issue of the validity of a postnuptial contract. The facts appear from the reasons for judgment.

 

EX PARTE MENZIES ET UXOR 1993 (3) SA 799 (C)  A

1993 (3) SA p799

Husband and wife - Proprietary rights - Variation of property regime in terms of s 21(1) of Matrimonial Property Act 88 of 1984 - Application for variation of regime from one in community of property to one out of community of pro perty - Consequent alteration in title deeds of immovable  properties acquired before 1984 - Not necessary for registered owner to transfer half share to spouse - Where asset previously co-owned by spouses in community of property in equal undivided shares, it continues to be so owned out of community and the undivided shares which were previously indivisible become divisible - Where community of property replaced by property system out of community, 'tied' co-ownership replaced by free co-ownership by spouses in all assets in same equal shares, which remain undivided but become divisible at instance of either spouse - Section 16 of Deeds Registries Act 47 of 1937 referring to conveyance of ownership from one person to other and not applicable where parties seek merely to have deeds endorsed to reflect the correct rights of ownership - Appropriate procedure rather to register title in terms of s 33 of Act or to endorse deed in terms of s 3(1)(v) of Act.

 

EX PARTE BURGER AND ANOTHER 1995 (1) SA 140 (D)  A

1995 (1) SA p140

Husband and wife - Proprietary rights - Variation of matrimonial property regime in terms of s 21(1) of Matrimonial Property Act 88 of 1984 - Application for variation of regime in order to introduce accrual system - Not open to parties to record values of their estates as at date of conclusion of notarial contract and, if they should do so, values so  declared irrelevant and of no force or effect and provisions of s 6(4)(b) of Act 88 of 1984 automatically apply. When the parties to a marriage change their matrimonial property regime in terms of s 21(1) of the Matrimonial Property Act 88 of 1984 in order to introduce the accrual system, the normal basis of that system as laid down in ss 3 and 4 of Act 88 of 1984 applies and an accrual is to be calculated by reference to the respective sizes of the spouses' estates as at the date of their marriage. It is accordingly not open to the parties in such a case to record the values of their estates as at the date of the conclusion of the notarial contract and, should they do so, the values so declared are irrelevant and of no force or effect and the provisions of s 6(4)(b) of the Act will automatically apply.