Legislation
The Matrimonial Property Act, 1984, covers matrimonial property regimes and the financial consequences of marriage as covered in this this article.
Two other key legislation relating to marriage, albeit not covered in this article, include The Marriage Act 25 of 1961, which governs the registration and solemnisation of marriages in South Africa, and The Divorce Amendment Act, 2024, which covers the dissolution of a marriage (unlike annulment, which declares the marriage null and void).
The new Marriage Bill, which has been in development since 2022, will replace the Marriage Act, the Civil Union Act, and the Recognition of Customary Marriages Act.
Different types of marriage contracts
There are two main types of marriage contracts in South Africa:
1. In community of property (COP)
This is the default regime for marriages without a contract. In this regime, all assets and liabilities acquired during the marriage are considered joint property, and are shared equally by both spouses.
2. Out of community of property (ANC)
This regime requires an antenuptial contract (ANC) to be signed by both spouses before the marriage. In this regime, each spouse's assets and liabilities remain separate.
There are two types of Antenuptial Contracts
- With accrual - The couple agrees to share the growth of any assets acquired during the marriage.
- Without accrual - Each spouse retains control of their own assets and debts during the marriage.
Changing a marital regime
A change in regime requires both husband and wife to apply jointly to the High Court for leave to amend their matrimonial property regime, if certain requirements are met:
- sound reasons for the proposed change;
- notice of the intention to change must be given (top the Registrar of Deeds, and posted in the Government Gazette and two local newspapers at least two weeks prior to the date on which the application will be heard)
- notice must be given to all known creditors of each spouse;
- creditors rights will be preserved;
- no other person shall be prejudiced by the proposed change;
- contain sufficient information about the parties’ assets and liabilities; and
- the new contract must be annexed to their application.
Such an application is expensive, complex and can take time. In fact, changing a marital regime has been so difficult for some couples, that they have resorted to a divorce instead. This can also be an option with unfavourable outcomes.
Get advice on your marriage before getting married
The complexities of marital property regimes in South Africa should be fully understood by couples before they decide to get married. Once the marriage is registered, it is not too late, but never easy, to ask questions.
Aucamp Incorporated is an experienced law firm with over 35 years’ experience in marriage contracts and notarial services in South Africa. For expert advice on your upcoming marriage, or drafting of your antenuptial contract, get in touch with one of our experienced attorneys.