Unit 6 Variable consequences of marriages out of community of property PDF

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Here is unit 6 of the scope of family law that deals with variable consequences for marriage....

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Unit 6 Variable Consequences of Marriages Out of Community of Property Introduction The variable consequences of marriages out of community of property are provided for in a marriage contract or an ante-nuptial contract. Spouses are free to include any provision in their marriage contract as long as it is not contrary to the law, good morals or the nature of the marriage. Any provision contrary is void. Upon completion of this unit you should be able to:

Outcomes describe what an Ante-nuptial contract is; describe the content of the Ante-nuptial contract; identify the ways in which marriage out of community of property can vary; explain the principle of immutability; differentiate between the advantages and disadvantages of the various matrimonial property regimes;

1. The Ante-Nuptial Contract The primary purpose of an ante-nuptial contract is to deviate from some of the common-law or statutory rules regarding the matrimonial consequences of the marriage. Parties are therefore at liberty to enter prior to their marriage, into agreements which would alter their matrimonial property regime and consequences from that applied by law in regard to themselves and third parties. The Ante-nuptial agreement after it is signed must be registered in order to be valid against third parties.

Section 78 further provides that an ante-nuptial

contract executed in Namibia shall be attested by a notary and shall be registered in a deeds registry within three months after the date of its execution or within such extended period as the court may on application allow. If the ante-nuptial contract executed outside Namibia, it shall be attested by a notary or otherwise be entered into in accordance with the law of the place of its execution, and shall be registered in a deeds registry within six months after the date of its execution or within such extended period as the court may on application allow. In terms of Section 79, apart the provisions of the Act, the court may, subject to such conditions as it may deem desirable, authorize postnuptial execution of a notarial contract having the effect of an ante-nuptial contract, if the terms thereof were agreed upon between the intended spouses before the marriage, and may order the registration, within a specified

period, of any contract so executed. A post nuptial registration of an ante-nuptial contract will however only be successful if the following conditions are fulfilled: a)

The application is brought jointly by both spouses, unless the one spouse has already passed away,

b)

There are sound reasons why the contract had not been registered prior to the marriage,

c)

The parties must have come to an agreement beforehand, there must therefore be an ante-nuptial contract in existence already,

d)

The application for postnuptial registration is lodged within a reasonable time after becoming aware that the ante-nuptial contract is not registered, and

e)

The application is accompanied by the draft agreement.

Rectification of a mistake in the ante-nuptial contract may be made if it does not reflect the true intention of the parties. There must exist good faith on the part of the parties and application for rectification is brought within a reasonable time after becoming aware of the mistake. A marriage contract will not completely lapse upon divorce or death of one of the parties. The marriage contract terminates only when all the terms become irrelevant, have been fulfilled or have been terminated by the court.

2. Content of the Ante-Nuptial Contract The most common things regulated in a marriage contract are:

i)

Donations

Common law prohibited donations between spouses unless they were made in a marriage contract. As such, donations between spouses are made in marriage contracts. These donations may be subject to a condition or time clause.

ii)

Succession clause

The parties to the marriage may agree on the succession of property upon their death. These are seldom included in contracts today as spouses often opt for joint wills. Should the parties however include this clause in their marriage contract, it can only be altered by a joint will and not by unilateral action of a spouse.

iii)

Liability for household necessities

Is spouses are married out of community of property, there arises no reciprocal right of recourse with regard to contribution made for household necessaries because there exists a joint household. The parties may as such make provision to that effect in their marriage agreement or they can informally agree to it.

iv)

Matrimonial Property system

The main purpose of a marriage contract is to make applicable to the marriage a different matrimonial property system instead of the normal community of property. The possibilities that the spouses can choose from will be discussed in 3 below.

Requirements for enforceable marriage contract a)

The parties must have had consensus on the conclusion of the contract and is there

was no consensus with regards to a specific clause in the contract, only that clause is invalid and not the whole contract. If lack of consensus is proved with regard to a severable clause of the contract, only that clause is void and not the entire contract. b)

The parties must have the necessary capacity to act

c)

If the law requires specific formalities to me met, then those formalities must be met

d)

The contract must be executable in the physical and juridical sense of the word, and

e)

The contract and performance thereof must be lawful....