Marriages in South Africa are governed by the Marriage Act, 25 of 1961 and the Matrimonial Property Act, 88 of 1984. In South African law there are 3 different types of marriages being in community of property, out of community of property with the accrual system and out of community of property without the accrual system.
If spouses do not conclude an antenuptial contract prior to their marriage, they will automatically be married in community of property.
The main difference between marriages in community of property and out of community of property (including / excluding the accrual system) is that with a marriage in community of property a joint estate is created. This combines the estates of a husband and wife. In the case of a joint estate, the husband and wife each possess an undivided half share. In a marriage out of community of property the estates of the husband and wife are completely separate.
In a marriage in community of property there are circumstances where one spouse cannot perform certain legal acts without the written consent of the other spouse, for instance, a spouse cannot buy a house (immovable property) without the consent of the other spouse. The same principle applies if a couple is married according to the laws of another country.
It is possible in South Africa to marry according to religious requirements, for example, marriages according to Muslim or Hindu rites.
Men and woman can also be married by way of customary (indigenous) law. Such marriages are regulated in terms of the Recognition of Customary Marriages Act, 20 of 1998
Finally, same sex partners are able to marry in terms of the Civil Union Act, 17 of 2006.
Parties getting married in terms of the Civil Union Act can get married in or out of community of property.
Parties who wish their marriage to be out of community of property will have to conclude an antenuptial contract, which has to signed in front of a notary public.
Antenuptial contracts must be signed prior to the date of marriage and must be registered in the Deeds Office.
Parties intending to marry are advised to contact an attorney to obtain legal advice based on their particular circumstances.
Careful consideration should be given to the matrimonial property system spouses wish to apply to their marriage as such system can, after marriage, only be changed through an application to the High Court.
The information as set out above does not constitute legal advice and is for information purpose only.
For more information please contact:
Francois van Pletzen