Mofuka v Mofuka (1) (379 of 2000) [2001] NAHC 6 (14 December 2001)

Mofuka v Mofuka (1) (379 of 2000) [2001] NAHC 6 (14 December 2001)

Although the marriage was concluded out of community of property by operation of s.17(6), the parties expressly or impliedly agreed prior to marriage that their proprietary regime inter se would be in community of property, and such agreement is enforceable between them.

Citation
[2001] NAHC 6
Parties
Plaintiff: Josefina Nangula Mofuka; Defendant: Teofilus Mofuka
Court
High Court
Jurisdiction
Namibia
Judgment Date
14 December 2001
Case Number
379 of 2000
Procedural Posture
Divorce and Ancillary Relief / Interlocutory Determination Under Rule 33(4) on Proprietary Consequences of Marriage
Outcome
Marriage concluded out of community of property by law, but inter se has effect of marriage in community of property.
Legal Topics
Matrimonial Property Regimes, Antenuptial Contracts, Native Administration Proclamation, Civil Marriages Between Blacks
Source Language
English
Family Law Customary Law Matrimonial Property Regimes Antenuptial Contracts Native Administration Proclamation Civil Marriages Between Blacks

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 17 Party arguments 2
Sign in to unlock

Parties

Josefina Nangula Mofuka

Plaintiff

Teofilus Mofuka

Defendant

Procedural Posture

Divorce and Ancillary Relief / Interlocutory Determination Under Rule 33(4) on Proprietary Consequences of Marriage

Legal Issues

  1. 1 Whether the marriage was contracted in or out of community of property under s.17(6) of the Native Administration Proclamation
  2. 2 Whether an informal or unregistered antenuptial agreement between the parties can alter the proprietary consequences inter se

Ratio Decidendi

Although the marriage was concluded out of community of property by operation of s.17(6), the parties expressly or impliedly agreed prior to marriage that their proprietary regime inter se would be in community of property, and such agreement is enforceable between them.

Court Disposition

Marriage concluded out of community of property by law, but inter se has effect of marriage in community of property.

Orders

  • The marriage between the plaintiff and the defendant on 1 September 1995 at Onawa in Ovambo has been concluded out of community of property but, as between the plaintiff and the defendant, the marriage has the effect of one concluded in community of property.
  • Costs in relation to this issue will stand over for determination at the end of the case.