Keep in mind that everyone have unique circumstances. Careful consideration should be given before deciding on the most suitable option. The laws that govern marriage and matrimonial property – the belongings of the spouses that form part of the marriage – are numerous and complex. That being said, our courts are very protective of the sanctity of marriage and the rights of the spouses. With international travel and communication becoming easier, and globalisation resulting in many cross-border relationships, questions about how marriages will operate in multinational settings from a practical and legal perspective are increasingly common.
This article explains the different types of marriages available in South Africa, and the formalities for concluding a legal marriage.
What types of marriages are there in South Africa?
In South Africa a person can get married in terms of civil law or customary law, or in terms of a culture or religion, such as Hindu or Islamic law. This is provided that they follow the provisions of the Marriage Act when getting married and comply with the same requirements for a civil marriage during their religious or cultural ceremony. Even same-sex partners can get married by concluding a civil union. There are special requirements that the spouses of each type of marriage must comply with in order to render their marriage valid, and the requirements differ from one type of marriage to the next. It is very important to speak to your religious officer or marriage officer to ensure that your marriage will satisfy all of the legal requirements for such recognition.
Which laws apply to marriages concluded in South Africa?
When speaking of civil marriages and determining how you and your partner are going to get married, the first question that needs to be asked is which legal system applies to your marriage.
In terms of the common law in South Africa, the matrimonial property regime of a marriage is determined according to the law applicable in the husband’s country of domicile at the time of the marriage, as opposed to the wife’s country of domicile.
Domicile is sometimes a difficult concept to define, but the generally accepted legal definition is “the place which a person deems to be their permanent residence; or a place to which, even if he or she were temporarily absent, they intend to return.”
Thus, if you are a South African woman marrying a man from the United Kingdom who is temporarily in South Africa and intends on returning there in the near future, the default position is that the laws of the UK will apply to your marriage. If you are both South Africans residing in this country, then the legal systems of South Africa will apply to your marriage.
What is unclear, however, and yet to be decided by our courts, is what system will apply in a same-sex civil union. In this case how is it determined who the “husband” will be? This is a very serious issue which needs to be addressed on a Constitutional level.
The Matrimonial Property Act 88 of 1984
If after determining that your husband to be is domiciled in South Africa, then it is important for you to know that the Act that will be governing the assets of your estate going forward will be the Matrimonial Property Act 88 of 1984 (the Act). This Act will have a direct effect on your assets for the duration of your marriage, and at the possible termination, through either death or divorce. It is, therefore, important that you consider it carefully, and for this reason I have briefly set out below the main points contained in the Act with which you need to acquaint yourself.
It is important to note that the South African matrimonial property regime was significantly amended in 1984, with the advent of the Matrimonial Property Act. Prior to this date, any marriage entered into without an ante-nuptial contract, resulted in the parties being married OUT of community of property. This system was amended in 1984, with the intention of protecting the spouse who generally, during those times, gave up her career to stay at home and raise children. This amendment had the effect that Marriages entered into without an ante-nuptial contract, resulted in the parties being married IN community of property.
Options Pertaining to Marital Regimes in South Africa as According to the Act
If you are getting married to a South African as explained above, then you essentially have 2 choices as to the marital regimes applicable to your marriage. They are:
1) A marriage in community of property; or
2) A marriage out of community of property.
If, however, you elect to be married out of community of property, which you must remember is not the default position, you require the execution of an ante-nuptial contract, in which case you have a further 2 choices:
1) Out of Community of Property with the application of the Accrual System; or
2) Out of Community of Property without the application of the Accrual System
How to decide which system is best for you
One specific system is not necessarily the best for all couples. Which system is best will depend on the individual needs and circumstances of each couple. For this reason, the various regimes and their respective advantages and disadvantages will now be dealt with.
i) Marriage In Community of Property
How does it work?
In terms of this system, both spouses share equally in the assets and liabilities that either of them own, owe or acquire before or during the marriage.
Spouses will have equal power of administration and both can act independently of the other, although there are certain exceptions. Written consent of both is, however, required for certain important transactions such as those relating to fixed property, suretyship’s and credit agreements, and informal consent of both is required for transactions such as the selling of goods of the joint household, such as furniture or jewellery. However, consent is not required for transactions relating to the trade, business or profession of the spouses.
This system rests on the sound principle namely that marriage is a partnership and as such can be conducive to a harmonious marital relationship. It also promotes both legal and economic equality of the spouses. During the marriage and on its dissolution both partners are entitled to a half share in the joint estate and each one has equal powers of administration.
The biggest disadvantage of a marriage in community of property is that insolvency of one of the spouses affects the total communal property, and thus the solvency of the other spouse. Where a risk of insolvency exists, it is therefore not a desired system. Further, the system of equal powers could, in cases where the temperament of one or both marriage partners is not collaborative, lead to conflict in the marriage.
ii) Marriage Out of Community of Property Without The Accrual System
How does it work?
In this type of system, each spouse comes into the marriage with their own assets and debts. During the marriage each spouse retains control of his or her own property, builds up his or her own estate and each is responsible for his or her own debts.
Each spouse retains sole control for their own assets and liabilities. Consent of one spouse is not required by the other so as to allow each spouse to enter into transactions, where each spouse is free to build up his or her own estate without the fear of it being attached by virtue of the other spouses insolvency, or being made liable to a possible division upon divorce.
In this system, if one spouse gives up their career to care for a the household or children, they will be severely prejudiced by not benifitting from the estate that they essentially helped to build by enabling the bread winner to build up their wealth.
This system is therefore not recommended for couples where one spouse intends giving up work or where the couple’s earning capacities are hugely disparate.
iii) Marriage Out of Community of Property With the Accrual System
How Does it Work
This system was developed by the legislature especially to ensure that some protection is still offered to those parties who elect to marry out of community of property, especially in those situations where, as referred to above, one of the parties remains at home, giving up a career to look after a household or children.
It works in much the same way as a marriage out of community of property without accrual except that upon dissolution of the marriage, either by death or divorce, the estates of the parties will be divided differently in accordance with the respective assets and financial position of the parties.
The way in which this division takes place is that upon dissolution of the marriage, by death or divorce, the difference between the respective values of the assets of each spouse obtained during the marriage – the accrual – will be shared equally between the spouses. This means that the spouse whose estate has shown a larger growth will pay to the other spouse half of the difference in their respective accruals. The accrual is determined by calculating the difference in the net starting value and the net final value of the estate of each spouse with the exclusion of inheritances, legacies and donations.
Out of all the systems, it is generally accepted that the accrual system is a modern, equitable system and may be conducive to a harmonious marriage relationship. During the marriage the competence of the spouses to deal with their property is not limited in any way, provided that the one does not or will not seriously prejudice the right of the other to share in the accrual. It also offers protection during the existence of the marriage against, for example, insolvency of one of the spouses. Further, at the dissolution of the marriage each spouse has a right to share in the growth of the estate, even if they did not financially contribute to it.
A possible disadvantage, especially in the case of a wealthy spouse, might be that he or she feels that he or she is not quite free to deal with his or her property since the other could apply to court for the immediate division of the accrual should the latter feel that the former, by entering into a specific transaction, might prejudice his or her right to share in the accrual. This may cause friction.
Another disadvantage of the accrual system is that spouses do not share in each other’s credit worthiness, which can have the result that the non-working spouse may have little credit worthiness during the subsistence of the marriage if his or her estate is small.
What steps do you follow to let a particular system apply to your marriage?
Now that you have a better understanding of the types of systems that are available to you, it is important for you to know how to go about deciding how the regime you choose to apply is to be instituted. In this regard, it is important to remind the reader that should you marry without entering into any form of ante-nuptial contract, you will automatically be married in community of property and you will only be able to amend this by applying to the High Court.
If you enter into an ante-nuptial contract but do not expressly exclude the accrual system, then this will automatically apply to your marriage. Should you wish to include the accrual system, but alter it in some way, you may do this by, for instance, including a provision that the eventual division of the accrual will not be on a 50/50 basis, but in accordance with another ratio.
It is important to note that you as spouses may include any provision that you wish to include in your ante-nuptial contract, provided that it is not contrary to the law.
In order to avoid any legal and practical difficulties arising from not selecting a matrimonial property regime from the outset, it is highly advisable that you contact a marriage officer, attorney or notary for more information on this topic. This should be done well in advance of getting married, to ensure that you have time to investigate and make suitable arrangements to comply with the legal requirements that apply to your intended marriage.