Question 1:

Question

A and B are married in community of property. B concludes a contract with X (the third
party) in terms of which B sells an antique chair (held as an investment) to X. B does
not get consent from A to sell the chair. Consequently, A alleges that the contract
cannot be upheld and comes to you for legal advice.
In approximately 150 words (no more), advise A on whether a valid contract was
concluded. (4)
Question 2:
Lydia approaches you for legal advice regarding the drafting of her ante-nuptial
agreement. A friend told her that a person may not dispose of their estate (also in the
context of succession) through a contract, including an ante-nuptial contract.
In approximately 150 words (no more), advise Lydia on the correctness of her friend's
statement and the option(s) possibly available to her. (4)
Question 3:
Consider the set of facts in the block below and advise whether Mrs Q will be entitled
to claim the property as stipulated in the ante-nuptial agreement. You must also do
this in approximately 150 words (no more). (4)
The parties had been married and divorced twice before. Both of these divorces were the
result of Mr Q having extramarital affairs. Mr and Mrs Q were married again (i.e. for the third
time) in 2000 and divorced in 2010. The antenuptial contract entered into before the final
marriage in 2000 provided that if Mr Q was the cause of a divorce due to an extramarital affair,
he would have to provide Mrs Q with a fixed property to the value of R 200 000 (with an
escalation value of 12% per annum from the date of the marriage) within three months after
the divorce. During the third marriage, Mr Q indeed had an extramarital affair with Mrs Y.
During the divorce proceedings in 2010, Mrs Q attempted to rely on the clause of the
antenuptial contract and claimed the property to which she believed she was entitled. Mr Q
argued that the clause was not enforceable. He argued that the clause was contra bonos
mores because it encouraged the dissolution of the marriage.
Question 4:
Provide an informed legal opinion on whether life partnerships must be provided with
the same legal recognition as civil marriages. In other words, whether life partners
(where a duty of support was established) should have exactly the same legal
protection as spouses in civil marriages. You must provide your opinion in
approximately 250 words (no more).

Answer 1

Answer 1:

As A and B are married in community of property, all property owned by them is jointly owned and shared equally by both spouses. B, therefore, had no right to sell the antique chair held as an investment without the consent of A. The lack of consent from A may render the contract invalid as the selling of the chair was not authorized by the joint owners of the property. However, if B can prove that the antique chair was their sole property, not subject to the community of property, B could have sold the antique chair without A's consent. This would have been true if the antique chair was acquired by B before the marriage or if it was expressly excluded from the community of property through a valid agreement. Nevertheless, if B sold the chair without A's authorization and it is deemed as community property, the contract could be set aside for lack of consent. A should, therefore, seek to find evidence on how the chair was acquired, and if it is a community property, A could dispute the contract.

Answer 2:

The friend's claim that a person may not dispose of their estate through a contract is not entirely correct in South Africa. An ante-nuptial agreement serves as a contract between spouses and determines the division of their assets, both during the marriage and upon death or divorce. The agreement should not dispose of the estate entirely, but anticipate how assets should be distributed upon death or divorce. Lydia can use an ante-nuptial agreement to determine how her assets will be distributed, setting out a mutually agreed-upon arrangement for each scenario. Furthermore, she could identify beneficiaries of her estate in her will, which will take effect upon death. However, she should note that a will can be contested, especially if it is not adequately drafted, and the court may intervene in the division of assets in exceptional circumstances. Lydia can also discuss estate planning with a qualified attorney to determine other options that may suit her specific needs.

Answer 3:

The antenuptial contract provision that states that, in the case of a divorce resulting from Mr Q's extramarital affairs, he is required to provide Mrs Q with a fixed property worth R200 000 (escalating by 12% per annum) is enforceable. Mr Q's contention that the clause is invalid because it is against public policy is not valid. It is not the court's place to rewrite the antenuptial agreement between consenting parties. As the clause was freely agreed upon, it is enforceable, provided that it is not against the law, public policy, or the contra bonos mores. The clause is not immoral as it does not encourage the dissolution of the marriage, but instead, it provides a remedy for the innocent spouse if the other party breaches the fidelity clause. Mrs Q is entitled to the property stipulated in the antenuptial agreement, and Mr Q must fulfill that obligation as per the contract.

Answer 4:

Life partnerships and civil marriages should have the same legal recognition as long as they are based on similar principles, including a mutual duty of support, committed relationship, and fidelity. Denying life partnerships the same legal protection as civil marriages would be discriminatory, especially since life partners' contributions and responsibilities are the same as those of married couples. However, the legislation should recognize the distinctions between life partnerships and marriages. Marriage has religious and cultural significance, while life partnerships are purely legal partnerships that may not involve engagement with religious institutions. Furthermore, the matrimonial property regime may differ from that of life partnerships, and the legislation should take that into account when granting legal protection. Nevertheless, the law should recognize life partnerships' legal validity, including rights and responsibilities such as inheritance, property division, and parentage, to ensure that all citizens receive equal protection under the law.