South African law recognises two marriage systems, civil marriages and customary marriages.
It is commonly, and incorrectly, believed that couples, whether heterosexual or same-sex, living together for a long period of time results in a common law marriage, thus giving each spouse the equal protection of the law. South African law does not give automatic rights to partners in a cohabitation relationship.
Spouses in a civil marriage benefit from certain automatic legal remedies available under the Marriages Act 25 of 1961, Matrimonial Property Act 88 of 1984, Maintenance of Surviving Spouses Act 27 of 1990 and the Divorce Act 70 of 1979.
From a conveyancing and property law perspective it is of utmost importance to determine what kind of marriage was concluded between the parties and whether the marriage concluded is valid.
Marriages in South Africa are governed in terms of the Matrimonial Property Act 88 of 1984. Customary marriages are governed by the The Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998).
There are three forms of matrimonial property regimes, marriage in community of property, marriage out of community of property with the application of the system of accrual, and marriages out of community of property without the application of the system of accrual.
This is the default position in South Africa, therefore if you do not enter into an antenuptial contract, a marriage in community of property will be your default marital property regime.
The automatic consequence of this form of marriage is that the two separate spouses’ estates are joined as one estate. Therefore, all assets and liabilities of the two separate estates are now combined into one estate. Consent is required from each spouse in order to enter into contracts, alienate or burden estate assets.
This system is only applicable and valid where the spouses have entered into contractual agreement before the marriage, known as an ante-nuptial contract (ANC)
The two spouse’s estates remain completely separate, with each spouse being able to dispose of their assets as they deem fit. Each spouse is able to maintain independence.
Parties must specifically choose to either include or exclude the accrual system in their ANC. The accrual system will only come into effect upon death or divorce and therefore nothing changes until either of the two aforesaid events take place. The accrual provides for each estate to be measured, together with the respective growths from date of marriage. The growth in both estates are determined and the party whose estate that has shown the greater growth during the marriage must split the difference with the other spouse, in equal shares.
In this system of marriage, each party maintains his or her own estate. However, this system is only applicable and valid where the spouses have entered into contractual agreement known as an ante-nuptial contract (ANC)
The ANC will be the most significant contract that a married couple will sign in their lifetime. It is very important to note that an ANC is entered into before marriage, and Only an attorney who is a notary public may execute and register an ANC. The ANC allows the husband and wife to determine the matrimonial property regime.
The most fundamental purpose of this system of marriage is that each spouse’s estate at the date of marriage is held separately by that spouse throughout the marriage (referred to as “exclusion of community of property”). Each spouse controls his/her own estate exclusively, without interference from the other spouse, although each has a duty to contribute to the household necessaries according to his/her means. This system gives each spouse absolute independence of contractual capacity and protects each spouse’s estate. This is what is known as the "what's yours is yours and what's mine is mine" scenario.
For assistance with your antenuptial contract or marriage agreement, please contact our attorneys in Cape Town.
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