Huwelikstelsels en boedelbeplanning in die Suid-Afrikaanse reg / deur M. Faul

Abstract

The Constitution of the Republic of South Afi'ica, 1996 acknowledges the customary system of law directly (section 211) and the religious based systems of law indirectly (section 15(3)). The objective of estate planning is to assure the most benefit, use and enjoyment of possessions for the owner with emphasis on the reduction of income and estate tax. The question to be addressed is whether the variety of matrimonial dispensations in South Africa have an influence on estate planning within the Constitutional order. The comparative method is used to achieve this objective by comparing the Islam, Hindu, African Customary law and the Common law matrimonial dispensations. The study is based on a literature'study. According to. Islam law a woman is inferior to a man. All marriages are concluded out of community of property. A woman may hold property but her husband has control over it. She is entitled to a dowry. Muslim marriages are potentially polygamous. A Hindu woman never reaches majority and the concept of in or out of community of property does not exist in Hindu law. Property belonging to women is divided into two groups namely stridhana and the limited female estate. Hindu marriages are potentially polygamous. According to the customary law a woman has a lesser status than a man but the Recognition of Customary Marriages Act 120 of 1998 rectifies the situation by declaring man and woman equal. Indigenous women are thus allowed to own property. The concept of in or out of community of property is unknown to customary law but the Recognition of Customary Marriages Act 120 of 1998 states that all marriages concluded after the commencement of the Act will be in community of property and in community of profit and loss unless an antenuptial contract is drawn up stating otherwise. Indigenous marriages are potentially polygamous. Only monogamous marriages are acknowledged in Common law. All marriages are in community of property and profit and loss unless stated otherwise in an antenuptial contract. The Fourth Law Amendment Act 132 of 1993 declared men and women equal in all matters. With regard to estate planning the following remarks can be made. Testamentary succession in Muslim law is limited to one-third of the property owned by the deceased. The remaining two-thirds of the property is divided according to the rules of intestate succession. Women may inherent only half as much as men. Muslim law is not recognised in South Africa and a testator will have to set up a trust to ensure that his wishes are fulfilled. In Hindu law the man only has a limited freedom of testation regarding the joint family property. Likewise, the woman only has freedom of testation regarding her stridhana. Hindu law is not recognised in South Africa and a testator will have to set up a trust to ensure that his wishes are fulfilled. A person married according to customary law does not have freedom of testation regarding movable property. There are certain rules in customary law determining the way in which estates should be divided. According to the Nguni, the eldest son of the first wife of the testator not only inherits the estate, but also the status as head of the family and the joint family estate. Women are not allowed to inherit property. According to the common law of South Africa, trusts are frequently used as estate planning instruments. Trusts have large advantages when it comes to estate planning and tax reductions. Section 4(q) of the Estate Planning Act 45 of 1955 provides that all bequests made to the surviving spouse are exempt from tax. The fact that Muslim and Hindu marriages are not recognised in South African law means that this provision is not applicable to them. By setting up trusts, Muslims and Hindus can ensure that their wives are financially taken care of. The women and/or daughters can be appointed as income beneficiaries and the children as capital beneficiaries. The customary law testator can ensure that all his children are treated equally by appointing not only his eldest son, but all his children, as capital beneficiaries. He can set up a trust for each of his wives in the case of a polygamous marriage, thereby ensuring that each of them receive income after his death. The conclusion is that the type of matrimonial dispensation according to which one is married, definitely has an influence on estate planning. It does not seem possible to create a family law system which will please all the people of our rainbow nation because of all the different cultures that exist.