Aantekeninge : huwelik binne gemeenskap van goed : die effek van 'n egskeidingsbevel op 'n bateverdelingsooreenkoms

Abstract

In this note the question as to the effect of a divorce order upon the ownership of the assets of a marriage in community of property is answered with reference to recent case law. The discussion begins with an overview of the general principles applicable in South African law to the acquisition of ownership. In the case of derivative acquisition of ownership our law requires inter alia traditio, and without it ownership cannot be acquired. However, in a recent decision the court held that in the case of a divorce settlement in a marriage in community of property, with the grant of the divorce order the former spouses automatically acquire individual ownership of assets as agreed upon in the divorce settlement. The note looks critically at the reasons for this judgment and reaches the conclusion that the decision is wrong. This view is also shared by a subsequent judgement where the court decided that the settlement agreement creates only a personal right, or personal rights, for the transfer of ownership and that the divorce order consequently does not vest ownership without traditio. This decision, after critical revision, is supported.