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Western Cape High Court and Advocate Muhammad Abduroaf

For those who do not know, Cape Town boasts the seat of the Western Cape High Court, the Highest Court of Law in the Western Cape.  Therefore, most major court cases makes its way to Cape Town.  This could either be due to the nature of the court case, or that a decision is being appealed and has to be heard in the Western Cape High Court. For that very reason, you will find many law offices in Cape Town.  These offices could either belong to a legal practitioner, who is an attorney or an advocate.

Advocate Muhammad Abduroaf

One such legal practitioner, is Advocate Muhammad Abduroaf whose chambers (offices) are very close to the Western Cape High Court. Academically, he holds an LL.B Degree (Bachelor of Laws Degree), as well as an LL.M Degree (Master of Laws Degree). As to the amount of years he has been practising as an advocate; it is over 15 (fifteen years). He gained prominence very early in his legal career, when he won a ground-breaking case for his client. Because of this case, it is now possible to claim maintenance from paternal grandparents of children born out of wedlock? This was not possible for over 80 years. The relevant case is Petersen v Maintenance Officer Simon’s Town Maintenance Court and Others 2004 2 SA 56 (C) 381 heard in 2014. Moreover, over a decade ago, Advocate Muhammad Abduroaf was an advocate in an important constitutional case. This was where the Western Cape High Court confirmed the extensive powers of the Maintenance Court, which includes interdicting pension funds. The relevant case is Soller v Maintenance Magistrate, Wynberg and Others 2006 2 SA 66 (C) 2006 446 heard in 2016.

Picture outside the Western Cape High Court

The picture in this post was taken when Advocate Muhammad Abduroaf exited the Western Cape High Court. To read more about the advocate, go ahead and Google him. Furthermore, have a look at this link https://www.ourlawyer.co.za/about-advocate-muhammad-abduroaf/  

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The role of antenuptial contracts in South Africa – What do you need to know before getting married?

When people are in love, they often want to spend the rest of their lives together. And one way of doing so is to get married. Usually, after they got married, they will start a family. However, there is one important aspect many people do not consider before getting married. And that is the propriety regime that would apply to their marriage. In other words, what belongs to who during the marriage and after the marriage should they divorce or one spouse passes away.

Marriages in community of property – The Standard Regime

In South Africa, the default matrimonial property regime is that of in community of property and profit and loss.  What this means, is that whatever property the couple have during the marriage, they would share. This includes debt. Therefore, should a party receive a huge sum of money during the marriage, that money would belong to both the parties and form part of the joint estate. The same principle would apply should a party get into financial trouble. In such a case both the spouses or the joint estate would be responsible for that debt. If spouses are happy to share in each other’s wealth and liabilities during the marriage, then being married in community of property may be a good option. However, if this matrimonial property regime does not appeal to a couple before they get married, then a different matrimonial property regime should be looked at. Now let us move on to a marriage out of community of property.

Marriages out of community of property – with or without the accrual regime

Marriages out of community of property may take two faces. The first is out of community of property without the inclusion of the accrual regime. This is its purest form. The other would be a marriage out of community of property with the inclusion of the accrual regime. Before we explain the differences between the two, we need to explain to you what it is meant to be married out of community of property and profit and loss.

Marriage out of community of property

Being married out of community of property means that spouses during the marriage own their own assets and are solely responsible for any debt owed by either of them. This can be compared to a marriage in community of property where the opposite applies. Therefore, if the couple is married out of community of property, a spouse would not require the other spouse’s consent to incur a debt. A spouse would not be entitled to claim any monies belonging to the other spouse by virtue of being married. In short, if you are married out of community of property, you are solely responsible for your estate. As would be seen further below, to be married out of community of property you have to enter into an antenuptial contract.

What is the accrual regime?

As mentioned above, a marriage out of community of property could have the accrual regime apply to it or not. The aspect of accrual only comes into play should the parties divorce or one of them pass away. The parties would then share in half the difference between the two estates. This amount is referred to as the accrual. Therefore, by way of example, should one spouse pass away and the estate of the deceased has grown in the sum of R10 000 – 00, then the surviving spouse should receive half of that. The above example would apply if the surviving spouse’s estate has not grown at all. If it has grown, then they would share in half the difference of their respective growths.

Marriage out of community of property with the inclusion of the accrual regime

The accrual regime automatically applies to a marriage out of community of property, unless it is expressly excluded in an antenuptial contract. During the marriage, the same principles as above apply to a marriage out of community of property with the inclusion of the accrual regime.

Marriage out of community of property with the exclusion of the accrual regime

If the couple does not want the accrual regime to apply to their marriage out of community of property, they need to expressly stipulate it in the antenuptial contract. If they do not do so, then their marriage would automatically be out of community of property with the inclusion of the accrual regime.

Parties entering into an antenuptial contract before the marriage

As stated, if a couple wants to get married out of community of property with or without the inclusion of the accrual regime, they need to enter into an antenuptial contract. They would sign a document wherein they stipulate what matrimonial property regime would apply to the marriage. Other matters may be included in an antenuptial contract. For example, assets that should not be included in the calculation of the accrual. The antenuptial contract is signed before a notary public and it is registered at the Deeds Office. In that way, the public would know that you are married out of community of property.

What happens if I did not enter into an antenuptial contract and want to change it later?

Should a couple get married and later decide to change the matrimonial property regime, they may do so with the consent of the High Court. A court application would have to be made to the High Court explaining to the court why they wish to change the matrimonial property regime and also which property regime they now wish to apply to them.

Publication of Application to change the matrimonial property regime

Various other information would be included in the High Court Application which could entail details of various creditors of the spouses and their assets and liabilities and so on. Attached to the court documents would also be a draft postnuptial contract. The Application and the Court date would be published in the Government Gazette and one or two local newspapers for potential creditors to be informed about the pending Court Application.

Informing creditors of the change in the matrimonial property regime

Various creditors would also be notified of the application via registered mail. The application can be expensive because of the work and expenses involved. This cost includes attorney fees advocate fees, publication fees etc. It is therefore important to decide before the marriage whether or not the matrimonial property regime of community of property is the best regime for you before getting married. If it is not the best for you and your intended spouse, we advised that the enter into an antenuptial contract. This will not only save you money in the long run but also avoid a lot of complications in the future. Speak to us should you wish to enter into an antenuptial contract. Our antenuptial contract product may be purchased here.   We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws    

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