Tag Archives: marriage

Dealing with marriage and estate planning

A3_GTIt is important to understand the legal implications of the marital property regime, especially when drafting a Last Will and Testament and also when entering into a marriage, as the regime chosen by the estate planner is going to affect his/her assets.

The most important forms of marriage are: marriage in community of property, marriage out of community of property (without accrual), and marriage out of community of property (with accrual).

Marriage in community of property

  1. There is no prior contractual arrangement, apart from getting married;
  2. Spouses do not have two distinct estates;
  3. There is a joint estate, with each spouse having a 50% share in each and every asset in the estate (no matter in whose name it is registered);
  4. Applies to assets acquired before the marriage and during the marriage;
  5. Should one spouse incur debts in his own name it will automatically bind his/her spouse, who will also become liable for the debt;
  6. If a sequestration takes place (in the case of insolvency), the joint estate is sequestrated.

Marriage out of community of property without the accrual system

  1. An antenuptial contract (ANC) is drawn up by an attorney (who is registered as a notary), before the marriage;
  2. Where there is no contract, the marriage is automatically in community of property;
  3. The values of each spouse’s estate on going into the marriage are stipulated in the contract;
  4. A marriage by ANC means that all property owned by spouses before the date of the marriage will remain the sole property of each spouse;
  5. Each spouse controls his/her own estate exclusively without interference from the other spouse, although each has a duty to contribute to the household expenses according to his/her means;
  6. To allow for assets acquired by spouses during the marriage to remain the sole property of each spouse, the accrual system must be specifically excluded in the ANC.

Marriage out of community of property with the accrual system

  1. The accrual system automatically applies unless expressly excluded in the antenuptial contract;
  2. The accrual system addresses the question of the growth of each spouse’s estate after the date of marriage.

ESTATE PLANNING

Donations between spouses are exempt from donations tax and estate duty.

Marriage in community of property

  1. In the event of the death of one spouse, the surviving spouse will have a claim for 50% of the value of the combined estate, thus reducing the actual value of the estate by 50%. The estate is divided after all the debts have been settled in a deceased estate (not including burial costs and estate duty, as these are the sole obligations of the deceased and not the joint estate).
  2. When drafting a Last Will and Testament, spouses married in community of property need to be aware that it is only half of any asset that he or she is able to bequeath.
  3. Upon the death of one spouse, all banking accounts are frozen (even if they are in the name of one of the spouses), which could affect liquidity.
  4. Donations or bequests to someone married in community of property can be made to exclude the community of property; in other words, if the donor stipulates that the donation must not fall into the joint estate, then the donee can build up a separate estate. However, returns on such separate assets will go back to the joint estate.

Marriage out of community of property without the accrual system

Each estate planner (spouse) retains possession of assets owned prior to the marriage.

Marriage out of community of property with the accrual system

A donation from one spouse to the other spouse is excluded from the calculation of each spouse’s accrual; in other words, the recipient does not include it in his growth and the donor’s accrual is automatically reduced by the donation amount.

DIVORCE

In the event of divorce, the marriage will be dissolved by court decree, which will address such aspects as child maintenance, access, guardianship and custody, spousal maintenance, the division of assets, division of pension interests and so on.

COHABITATION AND DEFINITION OF “SPOUSE”

Cohabitation is defined as a stable, monogamous relationship where a couple who do not wish to or cannot get married, live together as spouses. The Taxation Laws Amendment Act has extended the definition of “spouses” to include “a same sex or heterosexual union which the Commissioner is satisfied is intended to be permanent”.

Many pieces of legislation, including the Pension Funds Amendment Act and the Taxation Laws Amendment Act, now define spouse to include a partner in a cohabitative relationship, the effects of which are that cohabitees will benefit from the Section 4(q) estate duty deduction in the Estate Duty Act, and the donations tax exemptions of the Income Tax Act.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

To marry or not to marry…

article1nl-JulyWhen a man proposes marriage to the love of his life and she accepts the proposal and they become engaged they are said to have concluded a contract to marry in the future.

When an engagement is called off one often get the situation where the aggrieved party wants to sue their ex for breach of promise.

Recent case law regarding the breach of promise to marry

Although there is frustration and heartbreak that may be experienced at the end of an engagement, the unfortunate reality of the matter is that it is not that easy to succeed in a monetary claim against somebody who is not intent on fulfilling their promises.

Common Law:

Our common law has, over the years, recognised the principle that the aggrieved party has a claim for breach of promise. Traditionally this claim comprises of two parts as follows:

  1. The delictual claim which the aggrieved party would have under the action injuriarum for contumelia, in other words,  damages for the humiliation caused as a result of the break-up of the relationship; and
  2. The contractual claim for the actual financial loss suffered by the aggrieved party as a result of the break-up of the relationship of the parties.

Van Jaarsveld v Bridges (2010) SCA:

In the Supreme Court of Appeal case of Van Jaarsveld vs Bridges (2010) it was found that no claim in South African law exists other than actual expenses incurred in the planning and preparation of the marriage.

In the Judgment Harms DP in respect of breach of promise, draws attention to a court’s right, and more importantly, duty to develop the common law, taking into account the interests of justice and at the same time to promote the spirit, purport and objects of the Bill of Rights.

Harms DP said that he is unable to accept that parties when promising to marry each other at that stage of their relationship would contemplate that a breach of their engagement would have financial consequences as if they had in fact married. The assumption of the two parties is that their marital regime will be determined by their subsequent marriage. Harms DP then concluded that in his view an engagement is more of an unenforceable pactum de contrahendo providing a spatium deliberandi:  – “a time to get to know each other better and in which they would decide whether or not to finally get married.”

ES Cloete v A Maritz (2013) WCH:

The question whether or not the claim for breach of promise is a valid cause of action in South African law was once again considered in the Western Cape High Court.

In the Western Cape High Court, Judge Robert Henney was the presiding Judge in the matter of ES Cloete versus A Maritz.

Miss Cloete claimed that Mr Maritz proposed formally to her in Namibia on the 9th February 1999 with an engagement ring and she accepted. The relationship was turbulent and a decade later Maritz called off the engagement and the subsequent wedding telling her that he no longer wanted to marry her or even see her; and that he had someone new in his life.  Cloete instituted action against Maritz and alleged that Maritz’s refusal to marry her amounted to a repudiation of the agreement that they had reached 10 years earlier.

Her Claim:

There were three aspects to Cloete’s claim:

  1. She wanted repayment of R 26 000.00 that she had given him in 1994 and 1996 for a business he was involved in.
  2. She wanted R 6.5 million to make up for the financial benefits she would have enjoyed had they concluded the marriage,  including amounts for the use and enjoyment of the house commensurate with the lifestyle enjoyed and maintained by the parties at the time of their cohabitation. She also wanted maintenance of R 8 500.00 a month for 25 years.
  3. Finally, she wanted R 250 000.00 in damages for breach of promise, impairment to her personal dignity and her reputation.

His Claim:

Maritz denied the allegations that Cloete has made and stated in replying papers that Cloete was in fact the one who had called off their wedding and he had merely accepted it.

Maritz raised a special plea that “breach of promise” did not constitute a valid cause of action based on the Supreme Court of Appeal’s Judgment in Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA), a judgment which this court is obliged to follow.

Judgement:

In his judgment Judge R Henney said: “Clearly, to hold a party accountable on a rigid contractual footing; where such a party fails to abide by a promise to marry does not reflect the changed mores, morals or public interest of today.”

Judge R Henney went on to say in his judgement: “It is my view that considerations of public policy and our own society’s changed mores cannot permit a party to be made to pay prospective damages on a purely contractual footing; where such a party wants to resign from a personal relationship and thus commits a breach of a promise to marry. Such a situation is in my view entirely untenable and cannot be allowed.”

Judge further went on to say:As pointed out by Sinclair, The Law of Marriage Vol 1 (1996), to hold a party liable for contractual damages for breach of promise may in fact lead parties to enter into marriages they do not in good conscience want to enter into, purely due to the fear of being faced with such a claim.  This is an untenable situation.”

Conclusion:

The world has moved on and morals have changed. Divorce, which in earlier days was only available in the event of adultery or desertion, is now available in the event of an irretrievable breakdown of the marriage. There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person, irrespective of the ‘guilt’ of the latter. Unwillingness to marry is clear evidence of the irretrievable breakdown of the engagement. It appears illogical to attach more serious consequences to an engagement than to a marriage

Maritz`s special plea was upheld and it was found that the claim for breach of promise is not a valid cause of action in South African law. As appears from the above decision, no claim in law exist other than actual expenses incurred in the preparing of the marriage. This effectively excluded any damages for breach of the promise to marry.

Source Reference:
Ronnilie Theron
Honey Attorneys

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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