T.H v C.J.H (975/2012) [2014] ZAECGHC 52 (29 May 2014)

T.H v C.J.H (975/2012) [2014] ZAECGHC 52 (29 May 2014)

The court found that the notarial contract executed and registered after the marriage, pursuant to a court order, qualifies as an antenuptial contract under section 2 of the Matrimonial Property Act because the parties had agreed to its terms before marriage. The evidence showed both parties intended to marry out of community of property and had sought to formalize this intention postnuptially due to ignorance of legal requirements. The court held that the accrual system applies to all marriages out of community of property unless expressly excluded. The phrase relied upon by the respondent did not constitute an express exclusion, as both parties were unaware of the accrual system at the...

Citation
[2014] ZAECGHC 52
Parties
Applicant: T. H.; Respondent: C. J. H.
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
29 May 2014
Case Number
975/2012
Procedural Posture
Civil Application / Separation of Issues; Determination of Proprietary Regime Under Matrimonial Property Act
Outcome
Defendant's claim in reconvention seeking a declaration that section 2 of the Matrimonial Property Act does not apply is dismissed. Costs awarded to the plaintiff, including costs of two counsel.
Judges
E Smith
Legal Topics
Matrimonial Property Regime, Accrual System, Antenuptial Contract, Express Exclusion, Onus of Proof
Family and Children Matrimonial Property Regime Accrual System Antenuptial Contract Express Exclusion Onus of Proof

Case Brief

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Parties

T. H.

Applicant

C. J. H.

Respondent

Procedural Posture

Civil Application / Separation of Issues; Determination of Proprietary Regime Under Matrimonial Property Act

Legal Issues

  1. 1 Does the notarial contract executed postnuptially pursuant to a court order have the effect of an antenuptial contract as contemplated by section 2 of the Matrimonial Property Act?
  2. 2 Did the parties expressly agree in the notarial contract to exclude the accrual system as required by section 2 of the Act?

Ratio Decidendi

The court found that the notarial contract executed and registered after the marriage, pursuant to a court order, qualifies as an antenuptial contract under section 2 of the Matrimonial Property Act because the parties had agreed to its terms before marriage. The evidence showed both parties intended to marry out of community of property and had sought to formalize this intention postnuptially due to ignorance of legal requirements. The court held that the accrual system applies to all marriages out of community of property unless expressly excluded. The phrase relied upon by the respondent did not constitute an express exclusion, as both parties were unaware of the accrual system at the...

Court Disposition

Defendant's claim in reconvention seeking a declaration that section 2 of the Matrimonial Property Act does not apply is dismissed. Costs awarded to the plaintiff, including costs of two counsel.

Orders

  • Prayer 2 of the defendant’s claim in reconvention is dismissed.
  • The defendant is ordered to pay the plaintiff’s costs, including the costs attendant upon the employment of two counsel.