L.G.V v J.H.V (born F) (6246/2008) [2010] ZAWCHC 602 (6 December 2010)

L.G.V v J.H.V (born F) (6246/2008) [2010] ZAWCHC 602 (6 December 2010)

The court found that the agreement marked 'X' did not purport to vary the matrimonial property regime, which remained out of community of property with accrual. The agreement merely excluded certain properties from the accrual calculation in the defendant's estate, which is a matter between the parties and does not affect third parties or creditors. The requirement for registration of nuptial contracts is intended to protect third parties, not to invalidate bilateral agreements regarding accrual sharing. The plaintiff did not donate the properties, as he did not own them; rather, he waived his right to share in the accrual of the defendant's estate up to the value of the specified...

Citation
[2010] ZAWCHC 602
Parties
Plaintiff: L G V; Defendant: J H V (born F)
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
6 December 2010
Case Number
6246/2008
Procedural Posture
Civil Trial / Determination of Separated Issues Under Rule 33(4) Prior to Divorce Trial
Outcome
The agreement marked 'X' is valid and enforceable between the parties; the plaintiff did not donate the properties but waived his right to share in the accrual up to their value; costs awarded against the plaintiff.
Judges
Allie
Legal Topics
Matrimonial Property Regime, Accrual System, Nuptial Contract Variation, Donation of Property, Enforceability of Agreements
Family and Children Civil Procedure Matrimonial Property Regime Accrual System Nuptial Contract Variation Donation of Property Enforceability of Agreements

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Parties

L G V

Plaintiff

J H V (born F)

Defendant

Procedural Posture

Civil Trial / Determination of Separated Issues Under Rule 33(4) Prior to Divorce Trial

Legal Issues

  1. 1 Whether the agreement annexed to the defendant's counterclaim marked 'X', which excludes certain immovable property from the accrual calculation of the defendant's estate, is void and unenforceable.
  2. 2 Whether the plaintiff donated the excluded properties to the defendant, whether such donation is evidenced by the agreement, and whether as a consequence the properties are excluded from accrual sharing.

Ratio Decidendi

The court found that the agreement marked 'X' did not purport to vary the matrimonial property regime, which remained out of community of property with accrual. The agreement merely excluded certain properties from the accrual calculation in the defendant's estate, which is a matter between the parties and does not affect third parties or creditors. The requirement for registration of nuptial contracts is intended to protect third parties, not to invalidate bilateral agreements regarding accrual sharing. The plaintiff did not donate the properties, as he did not own them; rather, he waived his right to share in the accrual of the defendant's estate up to the value of the specified...

Court Disposition

The agreement marked 'X' is valid and enforceable between the parties; the plaintiff did not donate the properties but waived his right to share in the accrual up to their value; costs awarded against the plaintiff.

Orders

  • The agreement entered into between the parties marked 'X' and attached to the defendant's counterclaim, particularly paragraph 10, is valid and enforceable as between the parties.
  • The plaintiff did not donate the properties in question to the defendant but waived his right to share in the accrual of the defendant's estate up to an amount equal to the value of the properties or the value of their realisation on death or divorce in terms of the agreement marked 'X'.