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21	The law giveth and the law taketh away : Marriages out of community of property excluding accrual post 1984/88 Welsh, Shirley Anne Vera 11 1900 (has links) Because women are predominantly responsible for childcare, men are the primary income earners. Having acquired the marital assets, on divorce the husband would retain them in a marriage out of community of property. The wife would be left deskilled, financially dependent, with little likelihood of receiving spousal maintenance and with no marital assets. In 1984 the Matrimonial Property Act and in 1988 the Matrimonial Property Law Amendment Act introduced a judicial discretion to equitably redistribute marital assets in certain marriages out of community. This dissertation argues that the bases for the limitation of the judicial discretion to women married before a certain date are unsound and that the limitation arguably violates the equality clause of the Constitution. / Law / LL.M. Financial consequences of divorce Judicial discretion Spousal maintainance Contractual freedom Feminisation of porperty Substantive equality Gender discrimination New property 346.166068 Alimony -- South Africa Divorce settlements -- South Africa Marriage settlements -- South Africa Women -- Legal status
22	The need for a flexible and discretionary system of marital property distribution in the South African law of divorce Lowndes, Gillian Claire 11 1900 (has links) Substantive gender equality has yet to be achieved in South Africa. As such, when a decision is made for one of the spouses to a civil marriage to stay at home and care for the children born of the marriage, or make career sacrifices to care for children, that spouse is usually the wife. As a result, while the husband continues to amass wealth and grow his earning potential, the wife is unable to do so. In circumstances where such spouses are married out of community of property or subject to the accrual system with onerous exclusion clauses in the antenuptial contract, the wife may be left with little more than a claim for rehabilitative maintenance in the event of a divorce. The courts only have the discretion to make an equitable distribution of marital property in civil marriages with complete separation of property concluded prior to 1 November 1984 (or 2 December 1988) and customary marriages. It is arguable that this limitation of the judicial discretion violates the equality clause contained in the Constitution of the Republic of South Africa, 1996. A broad judicial discretion to equitably redistribute the spouses’ assets upon divorce is therefore proposed in this dissertation. / Private Law / LL.M. Matrimonial property regime Marriage in community of property Marriage out of community of property Accrual system Antenuptial contract Family contract Dissolution of marriage Spousal equality Substantive equality Formal equality Differentiation Discrimination Gender-stereotypical expectations Public-private dichotomy Pension interest Pension sharing Clean-break principle Judicial discretion upon divorce Maintenance Forfeiture of assets Equitable distribution Law commission Financial need Prenuptial agreement Qualifying nuptial agreement 346.1664068 Marital property -- South Africa Alimony -- South Africa Divorce settlements -- South Africa Judicial discretion -- South Africa
23	The need for a flexible and discretionary system of marital property distribution in the South African law of divorce Lowndes, Gillian Claire 11 1900 (has links) Substantive gender equality has yet to be achieved in South Africa. As such, when a decision is made for one of the spouses to a civil marriage to stay at home and care for the children born of the marriage, or make career sacrifices to care for children, that spouse is usually the wife. As a result, while the husband continues to amass wealth and grow his earning potential, the wife is unable to do so. In circumstances where such spouses are married out of community of property or subject to the accrual system with onerous exclusion clauses in the antenuptial contract, the wife may be left with little more than a claim for rehabilitative maintenance in the event of a divorce. The courts only have the discretion to make an equitable distribution of marital property in civil marriages with complete separation of property concluded prior to 1 November 1984 (or 2 December 1988) and customary marriages. It is arguable that this limitation of the judicial discretion violates the equality clause contained in the Constitution of the Republic of South Africa, 1996. A broad judicial discretion to equitably redistribute the spouses’ assets upon divorce is therefore proposed in this dissertation. / Private Law / LL. M. Matrimonial property regime Marriage in community of property Marriage out of community of property Accrual system Antenuptial contract Family contract Dissolution of marriage Spousal equality Substantive equality Formal equality Differentiation Discrimination Gender-stereotypical expectations Public-private dichotomy Pension interest Pension sharing Clean-break principle Judicial discretion upon divorce Maintenance Forfeiture of assets Equitable distribution Law commission Financial need Prenuptial agreement Qualifying nuptial agreement 346.1664068 Marital property -- South Africa Alimony -- South Africa Divorce settlements -- South Africa Judicial discretion -- South Africa

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