MATRIMONIAL PROPERTY LAW: SALRC DISCUSSION PAPER RELEASED FOR COMMENT

MATRIMONIAL PROPERTY LAW: SALRC DISCUSSION PAPER RELEASED FOR COMMENT

• 16 August 2023
• Justice & Constitutional Development
• SA Legal Academy

Please note: On 29 September 2023, the SALRC issued a media statement extending the deadline for comment to 30 November 2023.

The South African Law Reform Commission has published a discussion paper as the next step in its ongoing review of matrimonial property law. The deadline for input has been set at 30 September 2023.

Informed by comments on an issue paper published in September 2021, according to an accompanying media statement proposals in the paper include:

• changing the default matrimonial property regime from in community to out of community with accrual
• certain deviations from the default matrimonial property system
• replacing the rule determining matrimonial property consequences with one taking account of ‘a range of factors’ and not only rules prevailing in a husband’s country of domicile
• regarding customary marriages, that:
  • family property should not be regarded as marital property
  • a spouse’s improvements to it should be compensated
  • ‘in certain circumstances’ a court should be given general discretion to divide the property ‘with reference to a variety of factors’, and that
  • specific rules be adopted to deal with the conversion of a customary marriage to a civil marriage
• regarding religious marriages, that:
  • the default regime for monogamous religious marriages should be out of community of property with accrual, but ‘with different options’
  • the nikah be recognised as a valid marriage, and that
  • ‘polygynous religious marriages should be out of community of property without accrual, but with the court exercising a general discretion to redistribute’
• regarding unmarried life partnerships, that:
  • courts should have the discretion to deal with the assets of the parties concerned upon dissolution, but with different options available, and that
  • putative marriage and universal partnership requirements should be codified ‘to ensure that these remedies are applicable to putative customary and religious marriages’, and
• regarding the dissipation of assets pending divorce:
  • various preventative measures, including mechanisms to ensure full financial disclosure upon divorce.

Please click the links below for more information:

• discussion paper
• media statement

Published by SA Legal Academy Policy Watch

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