Author: Tarryn Jason
Jason Attorneys Inc.
The Nitty Gritty On The Law Governing Marriages in South Africa
Are you and your partner considering “tying the knot”? If so, do not underestimate the importance of having that very necessary discussion regarding which marital regime you should choose to govern your future marriage. This article serves to give you a brief and basic understanding of what your options are. For more detail on any information contained in this article, please do not hesitate to contact us.
In South Africa, the law pertaining to marriages is governed by the following pieces of legislation, namely: –
- The Matrimonial Property Act 88 of 1984 (“the Matrimonial Property Act”);
- The Marriages Act 25 of 1961 (“the Marriages Act”);
- The Recognition of Customary Marriages Act 120 of 1998 (“the Customary Marriages Act”);
- The Deeds Registries Amendment Act 9 of 2003 (“the Deeds Registries Amendment Act”); and
- The Civil Union Act 17 of 2006 (“the Civil Union Act”).
Three types of civil marriages (i.e. marriages recognised by law) exist, namely: –
- Marriage in Community of Property;
- Marriage out of Community of Property, including the Accrual System; and
- Marriage out of Community of Property, excluding the Accrual System.
I will now briefly explain what each of these marital regimes entail.
Marriage in Community of Property:
This is the default marital regime that applies in South Africa. This means that, should you fail to choose one of the other two, abovementioned, types of marital regimes to govern your future marriage, then your marriage will automatically, by operation of law, be considered one that is in Community of Property. What does this mean? Once married, you and your spouse’s estate (i.e. everything you own and owe individually) combines to form one joint estate, including all the assets and liabilities of each individual estate. Your assets and liabilities become your spouses, and vice versa, in an undivided joint share.
It is very important to understand the implications of this type of marriage, especially considering the fact that, if you do not act in time to choose a more suitable marital regime, that a marriage in Community of Property will regulate your marriage.
An example of how this regime can negatively impact your livelihood as a married couple is, should one of you become insolvent, in light of the fact that your individual estates have become one joint estate, the creditors of the insolvent spouse may move against the joint estate as a whole to recover the debts owed to them, save for any assets which have been specifically excluded from the joint estate by inheritance or the operation of law.
Marriage out of Community of Property:
Previously, and more specifically before 1 November 1984, marriages out of Community of Property meant, “what’s yours is yours and what’s mine is mine”. This is often referred to as the “old order” of marriage out of Community of Property. Because this often lead to situations where certain spouses were left financially destitute after divorce, where such spouse had contributed to the marriage and estate by means other than in financial terms, the law was amended to include the system of the inclusion of accrual.
Marriage out of Community of Property, including accrual:
This marital regime implies that, what each spouse walks into the marriage with (in terms of assets and liabilities) remains specifically theirs. However, after the date of conclusion of the said marriage, the wealth by which each individual spouse’s estate grows is taken into consideration in determining how the estate should be equally distributed if the marriage is dissolved thereafter. The short of it is that whichever of the spouse’s estates grew more financially, that spouse will be liable to pay to the other spouse half of the improved difference of the accrual by which their estates grew.
Where the accrual system is included, the Antenuptial Contract which is drafted to govern the specific marriage of each couple married out of Community of Property (which contract is registered at the Deeds Office governing the jurisdiction of such couple), a beginning value and list of assets for each spouse is stated in the Antenuptial Contract.
An example of how the estate would be distributed on dissolution of the marriage would be calculated as follows: –
- A accrues R500,000.00 since the date of the conclusion of the marriage;
- B accrues R100,000.00 since the date of the conclusion of the marriage;
- A’s estate has accrued by R400,000.00 more than B (i.e. R500,000.00 – R100,000.00);
- The result is that A is liable to pay B half of this (i.e. R200,000.00) on dissolution of the marriage; this to make recompense of previously disadvantage spouses by operation of the “old order” marriage out of Community of Property system, as aforementioned.
It must be remembered that in terms of Section 2 of the Matrimonial Property Act, the exclusion of accrual must be expressly stipulated, otherwise the marriage shall include the Accrual System.
Marriage out of Community of Property, excluding accrual:
This marital regime is really the “old order” system of marriage out of Community of Property that existed prior to the amendment of the law (i.e. before 1 November 1984), to include the Accrual System. In this system, the assets of each spouse from before and during the marriage remain part of each individual spouse’s estate. In this case, it is good to keep a record of who purchases what and hence one’s accounting requires more detailed control.
Formalities regarding marriages out of community of property: –
The drafting and execution of an Antenuptial Contract by an Attorney/Notary and the execution of same by a Notary before the solemnisation of the marriage (i.e. contract is entered into by both spouses before the marriage ceremony and hence solemnisation);
The registration of an Antenuptial Contract (which regulates the marriage and may include clauses specific to the particular couple) at the Deeds Office where the couple resides, within three months of the signing of the Antenuptial Contract;
It is usually my advice to recommend to a couple who are both contributing to the marriage financially, and especially where one is the owner of a business, that they be married out of Community of Property including the Accrual System. The reason for this is that should one party become insolvent, not all will be lost and the couple may still survive financially. Furthermore, it is fair to both spouses considering they both contribute financially to the relationship.
Please be advised that other marital regimes do exist, however same are not recognised by South African law. For this very reason, it is always best to, in conjunction with such marriages, to register a civil marriage (mentioned above) recognised by the law of South Africa (i.e. for the sake of financial protection of both spouses).
Changes brought about by the Customary Marriages Act should be read in conjunction with the Deeds Registries Amendment Act and particular attention must be paid to the type of customary marriage entered into and the date of same. The Customary Marriages Act came into operation on 15 November 2000 and gave recognition to marriages concluded in terms of Customary Law. This Act has had retrospective effect and has validated all valid customary marriages concluded prior to its coming into operation, subject to two rules, namely: –
Customary marriage entered into before 15 November 2000 – must be valid according to Customary Law and tradition at the time of conclusion of the marriage and continue to remain valid. This kind of marriage should be registered at the Department of Home Affairs and they are considered marriages in Community of Property.
Customary marriage entered into after 15 November 2000 – is valid only if it complies with the requirements of the Customary Marriages Act and must be registered at the Department of Home Affairs. These marriages can be either in or out of Community of Property.
Customary marriages may be monogamous or polygamous. The above applies to monogamous customary marriages. For more information on the governance on polygamous customary marriages, please do not hesitate to contact us.
Civil Union Act Marriages:
This Act is there to provide for the marriage of two spouses of the same sex by way of either a marriage or a civil partnership and came into operation on 30 November 2006. The same types of marital regimes, as described above, apply to civil unions dependant on the type the spouses in question choose. Civil unions must be registered at the Department of Home Affairs and a certificate of registration must be issued by the marriage officer.
Please bear in mind that this is a brief introduction to the law of marriages, in light of which, please do not hesitate to contact us for more information/advice or if you would like a quote regarding the costs of an antenuptial contract.
The original article by Jasson Attorneys Inc. can be viewed here: