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Marriage & Matrimonial Property
Where one of the spouses in a marriage becomes sequestrated, the system that governs their matrimonial property is important in the determination of consequences on the estate of the other spouse.
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Marriage out of Community of Property excluding community of profit and loss and accrual system is essentially the form of complete separation of estates, which are assets and liabilities.
The Women’s Legal Centre had in 2009, brought a petition to the Constitutional Court for direct access in terms of Section 167 of the Constitution, seeking relief from the Court to direct the state to recognize marriages concluded under Muslim law.
The default matrimonial property system under South African law is the community of property. Parties to a marriage are expected to clearly indicate should they wish to have a different matrimonial property system applicable in their marriage.
Besides certainty antenuptial contracts bring legal effect to matrimonial property regimes and this is crucial with regards to entering contracts, as well as in the event of divorce, maintenance and devolution of deceased estates.
The legal status of a marriage is determined by the legal regime of the country where it was solemnised or concluded.
There are reasons for this, chief among them being that a marriage is in essence an agreement between at least two consenting parties, where reciprocal obligations arise.
Jurisdiction in respect of contractual disputes is mainly (not exclusively however) founded where the contract was concluded.
It is not uncommon that at the behest of a moment of deep romance, parties in romantic relationships find themselves making decisions which have far reaching implications pertaining to their individual estates, when a marriage is eventually concluded.
The introduction of changes to marriage laws in South Africa can be expected as The Department of Home Affairs is developing new policies which are built on the foundation of the constitution.
In August 2018, the Western Cape High Court provided an answer to the question which asked if only one spouse married in community of property may sign a sole mandate agreement with an estate agent or agency.
Marriage in community of property is a type of matrimonial regime which joins the estates of the two spouses into one estate of equal shares.
Therefore, the couple who marries in community of property owns the joint estate together and the estate can only be divided should the couple choose to terminate the marriage.
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