This note investigates the extra-judicial change of the matrimonial property system during the subsistence of the marriage. Four possible ways have occurred in our case law whereby extra-judicial change is considered.
The first is referred to as an extra-judicial separation agreement, whereby the property system is also changed. It is accepted as a recognised manner provided that there is an acceptable reason for the separation. Notwithstanding the fact that judicial separation has been abolished, extra-judicial separation still fulfils a need in our law.
The property system can also be changed by last will and adiation by the surviving spouse. But the change occurs only after the marriage has been dissolved by death. It therefore does not qualify as amendment during the subsistence of the marriage.
The third manner refers to an extra-judicial agreement that does not equate to separation. There is support for this view because the prohibition on donations between spouses was abolished. However, this view was rejected by case law with reference to the immutability rule in our common law whereby extra-judicial change is not allowed. This rejection is criticised by some writers because spouses married out of community of property were always allowed to conclude a universal partnership whereby they could change their existing property system.
The force of this criticism has lost its validity to a large extent. The conclusion is reached that a universal partnership is valid only in case of a marriage out of community of property with inclusion of profit and loss. If the matrimonial property system also excludes profit and loss, the conclusion of a universal partnership will also effect change to the property system which is not extra-judicially allowed in terms of the common law immutability principle.
Viljoen, Frans; Abebe, Adem Kassie(Cambridge University Press, 2014-02-11)
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