Matrimonial Regimes

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- Featured article by LAWYERS-ONLINE.CO.ZA

What are your options when getting married under South African Law?

In principle marriage must be concluded between a man and a woman and it must be solemnised by a person who has been legally appointed or authorised to act as a marriage officer. In the case of minors under the age of 18, the consent of the Minister of Home Affairs is required, and over the age of 18 but under the age of 21, the consent of parents is required. Should the Minister and parents refuse consent, the High Court, as upper guardian, must be approached before a valid marriage can be entered into.

The South African legal system recognises three types of matrimonial property regimes: (in) community of property with the system of joint control and an equal sharing upon dissolution of the marriage; out of community of property with complete separation of property without any sharing upon dissolution of the marriage i.e without the accrual system; and out of community of property with some sharing upon dissolution, i.e with the accrual system.

Getting married in community of property is where a „ joint estate ‟ is formed with the parties as joint administrators. Assets are equally shared and the parties are jointly and severally liable for all debts incurred by either party to the marriage. Each party has right of disposal over the assets of the joint estate.

Getting married out of community of property, without the accrual system, this put very basically, is the regime whereby the parties clearly separate their assets - “What‟s yours is yours and what‟s mine is mine”. This regime is most often chosen by parties who have substantial estates or incomes at the time of marriage.

Getting married out of community of property with the accrual is a popular choice for couples who have not established themselves financially at the time of marriage. “Accrual” implies the sharing, on termination of the marriage, of the profits generated during the marriage. Upon dissolution of the marriage, whether it be by death or divorce, the estate values are determined separately, and the larger estate values are determined separately, and then the larger estate must transfer half the net difference to the smaller estate.

Common Law marriage – just to clarify on this - there is no assumption of marriage in South African law in consequence of cohabitation regardless of the duration of the relationship.

Our law also recognises other forms of matrimonial regimes, namely customary marriages and Islamic marriages .

A customary marriage is a marriage entered into in terms of section 7(2) of the Recognition of Customary Marriages Act 120 of 1998 which came into effect on 15 November 2000, “a customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an Ante - nuptial contract which regulates the matrimonial system of their marriage”.

In respect of Islamic Marriages, The South African Law Commission has come up with the Proposed Draft Bill for An Islamic Marriages Act in 2002.

Section 8 of the Bill deals with proprietary consequences of Islamic marriages and the contractual capacity of spouses. It provides that “An Islamic marriage entered into before or after the commencement of this Act shall be deemed to be a marriage out of community of property excluding the accrual system, unless the proprietary consequences governing the marriage are regulated, by mutual agreement of the spouses, in an Ante - nuptial contract which shall be registered in the Deeds Registry”.

On the other hand section 3 of the Act provides the spouses with an equal status and capacity to acquire assets, and to dispose of them, to enter into contracts a nd to litigate.

Before deciding on a matrimonial regime best suited for you and your future wife / husband, do your research and consult with an expert.

Date: 10th February 2014
Legislation: Matrimonial Property Act, 88 of 1984
Marriage Act, no.25 o f 1961
Recognition of Customary Marriages Act 120 of 1998