LH v ZH 2022 (1) SA 384 (SCA) Should section 18(a) of Matrimonial Property Act 88 of 1984 apply to all spouses in a marriage in community of property, irrespective of when the non-patrimonial damages were received?

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 77-85
• Author: Kathleen Nthabiseng Monareng
• Published date: 01 June 2023
• DOI: 10.17159/2225-7160/2023/v56a6

Recent case law 77

LH v ZH 2022 (1) SA 384 (SCA)

Should section 18(a) of Matrimonial Property Act 88 of 1984

apply to all spouses in a marriage in community of

property, irrespective of when the non-patrimonial damages

were received?

1 Introduction

South Africa has three statutes that regulate marriages, namely the

Marriage Act 25 of 1961 which regulates monogamous civil marriages

that are entered into by spouses of the opposite sex, irrespective of their

race; the Recognition of Customary Marriages Act 120 of 1998 which

regulates monogamous and polygynous customary marriages entered

into by South African black spouses, and lastly the Civil Union Act 17 of

2006 which regulates monogamous unions between spouses of the same

sex or opposite sex, irrespective of their race, and the unions are

registered either as a marriage or a civil partnership.

Prospective spouses, irrespective of the statute regulating their

marriage, can choose the matrimonial property regime that will regulate

their marriage. The matrimonial property regime that they choose will

determine their proprietary rights both during the subsistence of their

marriage and when the marriage is dissolved. (Marumoagae “The

beginning of the end – dissolution of marriage under accrual system”

2015 De Rebus 36).

There are three main matrimonial property systems prospective

spouses can choose from: (1) marriage in community of property; (2)

marriage out of community of property subject to the accrual system

and; (3) marriage out of community of property without the accrual

system.

When spouses enter into a civil marriage, there is a rebuttable

presumption that the marriage is in community of property (Edelstein v

Edelstein 1952 3 SA 1 (A) para 10). Community of property results in

spouses having a joint estate. This entails the spouses’ becoming co-

owners in undivided and indivisible half shares of all the assets and

liabilities they have at the time of entering into a marriage and those they

acquire during the marriage (Estate Sayle v Commissioner for Inland

Revenue 1945 AD 388; De Wet v Jurgens 1970 3 SA 38 (A); Mazibuko v

National Director of Public Prosecutions 2009 6 SA 479 (SCA)). According

to section 14 of the Matrimonial Property Act 88 of 1984 (the MPA) the

spouses have equal powers to manage the joint estate. Subject to a few

exceptions (see below), the joint estate consists of all the assets and

liabilities that both spouses have when getting married and all the assets

and liabilities that both spouses acquire during the marriage.

How to cite: Monareng ‘LH v ZH 2022 (1) SA 384 (SCA): Should section 18(a) of Matrimonial Property Act 88 of

1984 apply to all spouses in a marriage in community of property, irrespective of when the non-patrimonial

damages were received?’ 2023 De Jure Law Journal 77-85

http://dx.doi.org/10.17159/2225-7160/2023/v56a6