The dissipation of marital assets pending a divorce order in South Africa: a proposal for reform
- Mahlangu, Busisiwe Hlophane Maria
- Authors: Mahlangu, Busisiwe Hlophane Maria
- Date: 2023-10-13
- Subjects: Marital property South Africa , Equitable distribution of marital property South Africa , Divorce Economic aspects South Africa , Community property South Africa , Hidden asset , Divorce settlements South Africa
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424130 , vital:72126
- Description: Dissipation of marital assets takes place where one spouses uses the marital assets with the intention to frustrate the equitable distribution at the dissolution of marriage. This kind of behaviour usually occurs when one spouse anticipates a divorce or when the final divorce order is pending. In this context then, this thesis aims to critically analyse the effectiveness of the legal remedies available to spouses who are negatively affected by the dissipation of marital assets in marriage in community of property and marriage out of community of property with accrual. In this thesis the question is asked: does the current law adequately protect one spouse from another spouse unfairly hiding or dissipating assets from their estate to prevent the equitable distribution of these assets to the other spouse on divorce? In order to answer this question, this thesis proceeds by examining each of the remedies in detail, looking specifically at the statutory remedies set out in the Matrimonial Property Act 88 of 1984, specifically those contained in ss 8, 15 and 20 of that Act. It also considers remedies found in the common law. Ultimately, the study finds that these remedies do not provide adequate protection to spouses affected by the dissipation of marital assets and looks at the particular reasons for this finding. The study then concludes by proposing reforms to provide better protection to affected spouses. These legal reforms include: amending the legislative framework, changing the determinative date of the accrual, legislating a requirement for full disclosure of assets in terms s 8(1) of the Matrimonial Property Act and, finally, advocating for a flexible interpretation of the requirements of s 20 of the Matrimonial Property Act and the common law anti-dissipation remedy. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
- Date Issued: 2023-10-13
- Authors: Mahlangu, Busisiwe Hlophane Maria
- Date: 2023-10-13
- Subjects: Marital property South Africa , Equitable distribution of marital property South Africa , Divorce Economic aspects South Africa , Community property South Africa , Hidden asset , Divorce settlements South Africa
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/424130 , vital:72126
- Description: Dissipation of marital assets takes place where one spouses uses the marital assets with the intention to frustrate the equitable distribution at the dissolution of marriage. This kind of behaviour usually occurs when one spouse anticipates a divorce or when the final divorce order is pending. In this context then, this thesis aims to critically analyse the effectiveness of the legal remedies available to spouses who are negatively affected by the dissipation of marital assets in marriage in community of property and marriage out of community of property with accrual. In this thesis the question is asked: does the current law adequately protect one spouse from another spouse unfairly hiding or dissipating assets from their estate to prevent the equitable distribution of these assets to the other spouse on divorce? In order to answer this question, this thesis proceeds by examining each of the remedies in detail, looking specifically at the statutory remedies set out in the Matrimonial Property Act 88 of 1984, specifically those contained in ss 8, 15 and 20 of that Act. It also considers remedies found in the common law. Ultimately, the study finds that these remedies do not provide adequate protection to spouses affected by the dissipation of marital assets and looks at the particular reasons for this finding. The study then concludes by proposing reforms to provide better protection to affected spouses. These legal reforms include: amending the legislative framework, changing the determinative date of the accrual, legislating a requirement for full disclosure of assets in terms s 8(1) of the Matrimonial Property Act and, finally, advocating for a flexible interpretation of the requirements of s 20 of the Matrimonial Property Act and the common law anti-dissipation remedy. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
- Date Issued: 2023-10-13
The proprietary consequences of foreign marriages for the purposes of estate planning and succession in South Africa
- Authors: Thorne, Aimee Liza
- Date: 2023-03-29
- Subjects: Marital property South Africa , South Africa. Matrimonial Property Act 1984 , Conflict of laws Marital property , Estates (Law) South Africa , Inheritance , Prenuptial agreements South Africa , Postnuptial agreements South Africa
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/420725 , vital:71773
- Description: This thesis is intended to provide clarity regarding the proprietary consequences of foreign marriages in the context of estate planning and succession in South Africa. It includes an exploration into the impact of specific legislation on foreign marriages, the implications of matrimonial property regimes on a deceased estate in South Africa, private international law principles affecting matrimonial property and succession claims, the scope of antenuptial contracts and postnuptial contracts as existing remedies for foreign remedies, and the harmonisation of succession and matrimonial property law in the European Union (EU). It furthermore suggests potential reforms for the overhaul of the lex domicilii matrimonii principle and associated issues arising therefrom. Various specific issues discussed include the waiver of accrual claims, maintenance claims by surviving spouses of a foreign marriage, choice-of-law rules for matrimonial property rights and succession rights, the registration of a domestic or foreign antenuptial contract for foreign marriages, the formal validity and proper law of antenuptial contracts, the operation of the immutability principle on a domestic and international level, and the common-law approach to the recognition of postnuptial contracts and spousal donations. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
- Date Issued: 2023-03-29
- Authors: Thorne, Aimee Liza
- Date: 2023-03-29
- Subjects: Marital property South Africa , South Africa. Matrimonial Property Act 1984 , Conflict of laws Marital property , Estates (Law) South Africa , Inheritance , Prenuptial agreements South Africa , Postnuptial agreements South Africa
- Language: English
- Type: Academic theses , Master's theses , text
- Identifier: http://hdl.handle.net/10962/420725 , vital:71773
- Description: This thesis is intended to provide clarity regarding the proprietary consequences of foreign marriages in the context of estate planning and succession in South Africa. It includes an exploration into the impact of specific legislation on foreign marriages, the implications of matrimonial property regimes on a deceased estate in South Africa, private international law principles affecting matrimonial property and succession claims, the scope of antenuptial contracts and postnuptial contracts as existing remedies for foreign remedies, and the harmonisation of succession and matrimonial property law in the European Union (EU). It furthermore suggests potential reforms for the overhaul of the lex domicilii matrimonii principle and associated issues arising therefrom. Various specific issues discussed include the waiver of accrual claims, maintenance claims by surviving spouses of a foreign marriage, choice-of-law rules for matrimonial property rights and succession rights, the registration of a domestic or foreign antenuptial contract for foreign marriages, the formal validity and proper law of antenuptial contracts, the operation of the immutability principle on a domestic and international level, and the common-law approach to the recognition of postnuptial contracts and spousal donations. , Thesis (LLM) -- Faculty of Law, Law, 2023
- Full Text:
- Date Issued: 2023-03-29
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