Black and Label were married out of community of property in 2009 in Glasgow where
they had both been domiciled. In 2024, the Glasgow matrimonial property system
changed retrospectively to out of community coupled with the court’s discretion to
redistribute property on the dissolution of marriage. They left Glasgow in 1999 and
moved to South Africa where they are domiciled now. Soon afterwards, they applied
to court for an order changing their matrimonial property system to the accrual system.
The court granted the application. Fully advise Black and Label on the matrimonial
property system that applies to their marriage. use relevant cases and legislation
In this case, the applicable law for Black and Label's marriage would be the accrual system in South Africa. The accrual system is a form of in community of property where each spouse retains their separate estates during the marriage, but upon dissolution of the marriage, the growth in each spouse's estate is calculated and the spouse with the smaller growth is entitled to half of the difference between the two estates.
The change in matrimonial property system from out of community in Glasgow to the accrual system in South Africa would have legal implications for Black and Label's marriage. Since they were domiciled in South Africa at the time they applied for the change, the South African courts would have jurisdiction over their marriage and would apply the accrual system to their marital property.
In terms of relevant legislation, the Matrimonial Property Act 88 of 1984 governs the accrual system in South Africa. The Act sets out the principles and provisions for calculating the accrual of each spouse's estate during the marriage and the division of assets upon dissolution of the marriage.
In the case of Mankayi v Mankayi [2011] ZACC 15, the Constitutional Court of South Africa confirmed that the accrual system is a constitutional form of in community of property and endorsed the principles behind it.
Therefore, Black and Label should be advised that the accrual system is the applicable matrimonial property system for their marriage in South Africa and that they would need to abide by the provisions of the Matrimonial Property Act in terms of the division of their assets upon dissolution of their marriage. It is important for them to seek legal advice and guidance on the implications of this change in their matrimonial property system.