K.J.S v M.J.S (14396/2010) [2015] ZAKZDHC 43; 2016 (1) SA 64 (KZD); [2015] 3 All SA 85 (KZD) (25 May 2015)

K.J.S v M.J.S (14396/2010) [2015] ZAKZDHC 43; 2016 (1) SA 64 (KZD); [2015] 3 All SA 85 (KZD) (25 May 2015)

The court found that, although the Antenuptial Contract was not registered, the parties had agreed prior to marriage that their union would be governed by such a contract with the accrual system. This informal agreement is valid and enforceable between the parties, but not against third parties. The court rejected the plaintiff's argument that the marriage was in community of property, holding instead that it is out of community of property and subject to accrual. Regarding the date for determination of accrual, the court held that litis contestatio is the operative date, as it marks the crystallisation of the dispute and prevents inequitable outcomes such as asset manipulation or delayed...

Citation
[2015] ZAKZDHC 43
Parties
Plaintiff: K.J.S; Defendant: M.J.S
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
25 May 2015
Case Number
14396/2010
Procedural Posture
Civil Trial / Final Judgment
Outcome
The marriage is declared to be out of community of property and subject to the accrual system. The date for determination of accrual is litis contestatio. The plaintiff is ordered to pay the defendant's costs, including costs of the hearing on 2 March 2015.
Judges
Kruger
Legal Topics
Antenuptial Contract, Accrual System, Litis Contestatio, Division of Estates
Family and Children Civil Procedure Antenuptial Contract Accrual System Litis Contestatio Division of Estates

Case Brief

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Parties

K.J.S

Plaintiff

M.J.S

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the parties concluded a valid Antenuptial Contract prior to marriage and are married in or out of community of property.
  2. 2 Whether the accrual system applies to the marriage.
  3. 3 Whether the date for determination of accrual is litis contestatio or the date of divorce.

Ratio Decidendi

The court found that, although the Antenuptial Contract was not registered, the parties had agreed prior to marriage that their union would be governed by such a contract with the accrual system. This informal agreement is valid and enforceable between the parties, but not against third parties. The court rejected the plaintiff's argument that the marriage was in community of property, holding instead that it is out of community of property and subject to accrual. Regarding the date for determination of accrual, the court held that litis contestatio is the operative date, as it marks the crystallisation of the dispute and prevents inequitable outcomes such as asset manipulation or delayed...

Court Disposition

The marriage is declared to be out of community of property and subject to the accrual system. The date for determination of accrual is litis contestatio. The plaintiff is ordered to pay the defendant's costs, including costs of the hearing on 2 March 2015.

Orders

  • It is declared that the marriage relationship between the parties is one out of community of property and subject to the accrual system.
  • The date for determination of accrual is at litis contestatio.