PVL 2601 - STUDY UNIT 6 - MARRIAGE OUT OF COMMUNITY OF PROPERTY Actual Questions Fully Solved 100% Guaranteed Pass.

THREE VARIATIONS OF MARRIAGE OUT OF COMMUNITY OF PROPERTY - correct answer 1. marriage with complete separation of property 2. marriage out of community of property with retention of community of profit and loss 3. the accrual system PURPOSE OF ANTENUPTIAL CONTRACT - correct answer To deviate from the common law or statutory rules regarding the matrimonial property consequences of marriage. Ante nuptial contracts often include marriage settlements (donations between spouses) Spouses sometimes create a trust, enter into an agreement about succession. or govern their right of recourse in respect of expenses for household necessaries in their ante nuptial contract. Can be used in narrow and wide sense. NARROW SENSE - correct answer it refers to the formal contract that is executed before a notary and registered in the deeds office in terms of the Deeds Registries Act. WIDE SENSE - correct answer Informal agreement between parties which binds only them. Includes any type of agreement intending spouses conclude before marriage with a view to bringing about the marriage itself or regulating any aspects of it. FORMALITIES FOR CREATION OF A VALID ANTE NUPTIAL CONTRACT - GENERAL - correct answer In formal antenuptial contract is valid only inter partes Not valid against third parties. Marriage is considered to be in community of property in so far as the spouses debtors and creditors are concerned. SECTION 87 - correct answer Antenuptial contract executed in SA must be attested by a notary and registered in a deeds registry within three months of its execution or within such extended period as the court may on application allow. antenuptial contract executed in SA must be attested by a notary or entered into in accordance with the law of the place of its execution. Foreign antenuptial contract has to be registered in a deeds registry in SA within six months of its execution ow within such extended period as the court may on application allow. POSTNUPTIAL EXECUTION AND REGISTRATION OF AN ANTENUPTIAL CONTRACT - correct answer If spouses entered into a antenuptial contract prior to marriage but failed to comply with the formalities of notarial execution and registration, the High court may be approached in terms of Section 88 of the Deeds Registries Act for permission to have the contract formally executed and registered after the marriage. THREE REQUIREMENTS MUST BE MET BEFORE COURT WILL PERMIT POSTNUPTIAL EXECUTION AND REGISTRATION OF THE ANTENUPTIAL CONTRACT - correct answer 1. Parties must definitely agree on the terms of the contract before entering into marriage 2. Parties must give good reasons for their failure properly to execute and/or register the contract before the marriage. 3. The application must be made within a reasonable time after it was discovered that the agreement was not properly executed and/or registered. ANTENUPTIAL CONTRACT OF A MINOR - correct answer 1. Must personally sign the contract 2. Minor must have the consent of his or her guardian to enter into an antenuptial contract. Any of the child's guardians may independently exercise guardianship over the minor. Thus : 1. consent of either parent of a child born of married parents is sufficient for minor's entering into an antenuptial contract. 2. same applies if both parents of a child born of unmarried parents have guardianship in respect of the child. 3. if sole guardianship has been awarded to one of the parents, only the sole guardian needs to give consent. 4. if both parents are deceased the minors legal guardian must consent. 5. if consent to the minor's marriage must be obtained from the presiding officer of the Children's Court the presiding officer must assist the minor in the execution of the antenuptial contract. 6. If the High Court grants consent to the marriage, it may order that the minor sign the antenuptial contract with the assistance of a court appointed curator. If a minor has the requisite consent to marry but does not have consent to enter into an antenuptial contract, the antenuptial contract is void and cannot be ratified or registered afer the marriage has taken place. CONTENTS OF ANTENUPTIAL CONTRACT - GENERAL - correct answer The parties may include any provision in their antenuptial contract which is not impossible, contrary to good morals or contrary to the law or the nature of marriage. MATRIMONIAL PROPERTY SYSTEM - correct answer Most antenuptial contracts exclude the community of property and replace it with some form of separation of property. A RIGHT OF RECOURSE IN RESPECT OF HOUSEHOLD NECESSARIES - correct answer Section 23 of Matrimonial Property Act 88 governs liability for household necessaries in marriages out of community of property. Parties are jointly and severally liable for debts for household necessaries, irrespective of which spouse originally incurred the debt. Spouses are obliged to contribute to expenses for household necessaries on a pro rata basis In marriages concluded after the coming into operation of the Act there is no automatic right of recourse against one another. Couples who want to marry out of community of property may therefore want to include a right of recourse in respect of excess payments for household necessaries in their antenuptial contract. SUCCESSION - correct answer Spouses may want to agree on devolution of their estates after their respective deaths. May for example stipulate that surviving spouse will be first-dying spouse's sole heir or that upon the death of the first-dying spouse the estate of both spouses will devolve on their children, with the surviving spouse acquiring a usufruct over certain property. PACTUM SUCCESSORIUM Is a contract recognised in our law. In antenuptial contract PACTUM SUCCESSORIUM has same scope and purpose as a will. It is contractual in nature and therefore it can only be amended by a will which is made jointly by the spouses. If not joint will the surviving spouse still has the choice of inheriting either in terms of the PACTUM SUCCESSORIUM or the will. MARRIAGE SETTLEMENTS - correct answer Marriage settlement is a donation which one spouse makes to the other in terms of an anatenuptial contract. May be subject to a time clause or condition. Reversion clause frequently included in respect of a marriage settlement. Reversion clause, donor stipulates an event upon which the donation will revert to him or her, for example when the beneficiary predeceases the donor. Clause is enforceable, provided it does not violate the institution of marriage or its sanctity. Marriage settlement becomes irrevocable when the marriage takes place. Main advantage of including a donation in the antenuptial contract is that such inclusion confers some protection on the donation in the case of insolvency. MARRIAGE OUT OF COMMUNITY OF PROPERTY AND COMMUNITY OF PROFIT AND LOSS WITHOUT THE ACCRUAL SYSTEM - correct answer Called the complete separation of property Couples married before commencement of Matrimonial Property Act were married subject to complete separation of property and without the marital power. These were referred to as standard form antenuptial contracts. COMING INTO OPERATION OF MATRIMONIAL PROPERTY ACT - correct answer Marriage which is entered into with an anc that excludes community of property and community of profit and loss is automatically subject to the accrual system. If spouses do not wish the accrual system to apply to their marriage and want to be married subject to complete separation of property they have to stipulate this in the anc. EFFECT OF COMPLETE SEPARATION OF PROPERTY - correct answer parties remain in the same financial position as they were before the marriage. Each spouse retains the estate he or she had before the marriage as well as everything he or she acquires during the marriage. Each spouse has full capacity to act and can enter into contracts without the others assistance. Can also enter into contracts with each other. They CANNOT conclude contracts that cancel or substantially amend their matrimonial property system, such as entering into a universal partnership to share all their current and future assets, debts, losses and profits.