Name: TIISETSO MOFOKENG

STUDENT NO: 15085295

PVL 2601 ASSIGNMENT 2

DEPARTMENT OF JURISPRUDENCE
1.1

Question 1
A) Mr and Mrs Brown’s marriage is a marriage in community of property
because they entered into a civil marriage without an antenuptial
contract, which instantly mean that their marriage is governed by laws
of community of property
B) In terms of Community of property, Mr and Mrs Brown share a joint
including all their liabilities and assets they acquired before or during
the course of their marriage. This in turn means that the spouses
have equal rights and responsibilities. The fact that Mr Brown was
already in a civil married is the key problem in this matter. Mrs Brown
marriage is null and void, because it did not meet one of the
requirements and she would not have any patrimonial consequences
from the marriage but a bona fide party who acted in good faith may
institute a delictional action for satisfaction against the other party to
the void civil marriage. In this case Mrs1.2Brown is the bona fide and
she would have a claim against Mr Brown for her share of the joint
estate. The court held in Zulu v Zulu that in such event, the pre-
existence of the valid civil marriage in community of property renders
the creation of a joint estate between the parties to the putative
marriage impossible, because all the assets of party who is the
spouse in the civil valid marriage in community of property fall into the
joint estate which existed between spouses in the pre-existing valid
civil marriage

Question 2 1.3

Mr Mopeli’s claim that he can sell his asset without the consent of
Mrs Mopeli is not completely accurate. In a marriage in community
 out of property with the accrual2.1system, each spouse retains
ownership of their own assets and is responsible for their own debts,
however the accrual system provides a mechanism to ensure growth
of each spouse estate during the marriage is shared equally upon
dissolution of the marriage. The spouse 2.2 with a smaller accrual has a
claim against the other party. Both spouses have a duty to support
each other and to administer the matrimonial party in a decent
manner which includes acting in good faith and not disposing assets
with the consent of the other spouse. Mr Mopeli’s sale of assets
without consent may be seen as breach of his duty to administer the
2.3
matrimonial property decently. Mrs Mopeli can apply for an interim
interdict to prevent Mr Mopeli from selling any more assets. She can
also apply to the court for the division of the accrual. If Mr Mopeli has
used joint funds to pay off debts, she can claim for her share of those
funds or assets.

2.4

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 Index of comments

1.1 Dear Student, please note that Tutorial Letter 201, which you will receive after the closing date of Assignment 02,
contains the full memorandum on this question. Please consult carefully.

Regards

1.2 Discuss MS v Executor, Estate Late NS case.

1.3 Problem was not identified: This question relates to the statutory protection of a spouse's right to share in the
accrual.

2.1 Discuss section 8(1) of the Matrimonial Property Act.

2.2 Discuss that the court may order the division of the accrual according to the provisions of the Matrimonial Property
Act or on such other basis as it deems just.

2.3 Law incorrectly applied to the facts: Mr. Mopeli's conduct seriously prejudices Mrs. Mopeli's right to share in the
accrual of Mr. Mopeli's estate upon the dissolution of the marriage, she should apply to the High Court for the
immediate division of the accrual.

2.4 A mark was awarded for language, the use of tenses/syntax and formulation.

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