Various Matrimonial Property Regimes focusing on the Accrual System

Getting married is a legal act. With it comes certain responsibilities and rights. For example, you have a legal obligation to maintain your spouse. You cannot marry anyone else, and furthermore, your spouse can inherit from you interstate. Depending on the matrimonial property regime you entered into, certain legal consequences would apply regarding the proprietary (or money) aspects of your marriage. For example, to whom do money and assets belong to acquired during the marriage and before it. In South Africa, a person has three (3) choices when it comes to getting married in relation to your matrimonial property regime. They are explained briefly below. In Community of Property (Default system) A marriage in community of property is the default matrimonial property regime. You do not need to enter into an antenuptial contract in order to be married like this. Basically, when getting married, both spouses’ assets, money, liabilities and so on becomes one single joint estate. You can compare it to placing it all in one pot. And from that pot would the spouse’s finances be dealt with. If either spouse gets themselves into financial trouble, it is the joint estate, or the pot that would have to be looked at in order to sort it out. This would apply to financial trouble which arose even before the marriage.   Lastly, at death or divorce, the joint estate, or the pot would be divided and each party’s estate would leave with half. If you are worried about the financial implications of your marriage, you need to read further. Out of Community of Property and Profit or Loss (Without Accrual) Being married out of community of property and profit or loss is basically the exact opposite of being married in community of property. Here we are dealing with out of community of property with the exclusion of the accrual regime. Under this matrimonial property regime, there remain two separate estates just as there was before the spouses got married. Each spouse is responsible for their own wealth and debt. Creditors can therefore only claim from the estate of the relevant spouse. Not the other. At death or divorce, the situation remains exactly the same. Each estate leaves with whatever it has, being it money, assets or debt. In order for a couple to be married out of community of property and profit or loss, they need to stipulate it in an antenuptial contract and have it registered. The antenuptial contract would be executed before a Notary Public and registered at the Deeds Office. If this is not done,  then the marriage would be In Community of Property as above.  Next, we deal with a hybrid regime. You may find it more beneficial to you. Read more on antenuptial contracts by clicking here. Out of Community of Property and Profit or Loss (With Accrual) The third option a couple has is to get married out of community of property and profit or loss with the inclusion of the accrual regime. The accrual regime or system is outlined in the Matrimonial Property Act 88 of 1984. Basically, what it entails is that during the marriage you are married out of community of property and profit or loss as in the latter section, but at divorce or death, you share in the accrual or profits of the marriage. Each spouse still retains full control over their assets and estate during the marriage. Just as out of community of property and profit or loss without the accrual. If, however, the parties divorce or one dies, they will share in the accrual or profits. If you want the accrual regime to apply to your marriage, that would be stated in your antenuptial contract. It would then also be registered at the Deeds Office. In order to work out the accrual, one needs to know the net commencement value of each party’s estate. That would be stipulated in the antenuptial contract. The Accrual system is regulated in Chapter 1 of the Matrimonial Property Act 88 of 1984. In terms of the Act, certain items are excluded when calculating the accrual unless otherwise agreed upon. This is dealt with next.

Items or amounts excluded in the accrual calculation (unless otherwise agreed upon)

1. Amounts which accrued to that estate by way of damages, other than damages for patrimonial loss. E.g. pain and suffering;
2. An asset which has been excluded from the accrual system in terms of the antenuptial contract of the spouses, as well as any other asset which he or she acquired by virtue of his or her possession or former possession of the first-mentioned asset;
3. An inheritance, a legacy or a donation which accrues to a spouse during the subsistence of his or her marriage, as well as any other asset which he acquired by virtue of his or her possession or former possession of such inheritance, legacy or donation (except in so far as the spouses may agree otherwise in their antenuptial contract or in so far as the testator or donor may stipulate otherwise);
4. Donations between spouses, other than a donation mortis causa [anticipation of the death of the donor], is not taken into account either as part of the estate of the donor or as part of the estate of the donee.

Matrimonial Property Act 88 of 1984

[caption id="attachment_11933" align="alignnone" width="820"] Top Attorney Cape Town Relocation of minor child – Nicole Lawrence[/caption]

 

Nicole Lawrence, an attorney in Cape Town, tells about her success in a case involving the relocation of a minor child to the Seychelles. Here it goes. In the realm of family law, few issues are as emotionally charged and legally complex as the relocation of a minor child. It’s a situation where the delicate balance between parental rights and the best interests of the child must be meticulously weighed. Recently, in a High Court case,her legal team, which included Advocate Muhammad Abduroaf, achieved a resounding victory in securing the relocation of a minor child.

The Case Background

Her client, a devoted mother, sought to relocate with her minor child to another state for compelling reasons including career advancement opportunities and a support network crucial for her and the child’s well-being. However, the child’s father contested the relocation, citing concerns about his access to the child and the potential disruption to their existing arrangement.

The Legal Battle

Navigating through the intricate web of family law statutes and precedent cases, our legal team meticulously crafted a compelling argument centered on the paramount consideration: the best interests of the child. We presented substantial evidence showcasing how the relocation would offer enhanced opportunities for the child’s education, healthcare, and overall quality of life. Additionally, we emphasized the importance of maintaining a meaningful relationship between the child and the non-relocating parent through feasible visitation arrangements and technological means of communication. Crucially, we strategically addressed the concerns raised by the opposing party, assuaging fears about diminished parental involvement and emphasizing the importance of fostering a cooperative co-parenting relationship despite the geographical distance.

The Legal Triumph

In a courtroom filled with tension and anticipation, our legal arguments resonated strongly with the presiding judge. Recognizing the compelling rationale behind the relocation proposal and the unwavering commitment of our client to prioritize her child’s best interests, the judge ruled in favor of the relocation, with provisions carefully tailored to address the concerns of both parties. This decision not only affirmed the rights of our client as a custodial parent but also underscored the judiciary’s unwavering dedication to prioritizing the welfare of the child above all else. Moreover, it set a powerful case for future cases involving relocation disputes, highlighting the importance of a nuanced, child-centric approach in resolving such complex matters.

The Implications

Beyond the immediate impact on our client’s life, this successful court case serves as a beacon of hope for countless parents navigating similar challenges. It reinforces the principle that relocation should not be viewed solely through the lens of parental convenience or preference but rather through the prism of what serves the child’s best interests in the long term.

In Conclusion

As legal practitioners, we are immensely gratified by the outcome of this case, knowing that our efforts have not only secured justice for our client.

Contact Nicole Lawrence

Nicole Lawrence can be contacted as follows: Number: 071 456 9105 Website: https://nicolelaw.co.za Email: [email protected]

Child Custody, Contact rights and more – Children’s Act 38 of 2005

This article gives a  short introduction to the Children’s Act.

The Children’s Act 38 of 2005 was a very welcomed piece of legislation. It assists us in answering many issues relating to Family Law. For example. What are the rights of unmarried fathers? Do I as a father of a child born out of wedlock have rights? Do I as a father of a child born in terms of a religious marriage have rights?

Challenges for unmarried fathers

Rights of Unmarried Fathers in South Africa

The persistent problem for unmarried parents

The coming into effect of the Children’s Act 38 (Act 38 of 2005)

Parental responsibilities and rights

Meaning of Care in the Children’s Act

Meaning of Contact in the Children’s Act

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