Marriage and Matrimonial Property

 

 

 

Table of Contents:

About Marriage in South Africa

Matrimonial Property Systems

Points to Consider prior to Marriage

How DDK Inc. can Help 

FAQ'S

 

Yes!!!! 
On 30 November 2006, South Africa made world headlines when it became the fifth country in the world (and the first in Africa) to legalise marriage between two people of the same sex under the Civil Union Act.
The Civil Union Act is the law that now provides for legal recognition of marriages and civil partnerships, collectively referred to as civil unions, between two persons regardless of their sexual orientation or gender identity.

Yes, it is possible to change your marital regime through a process known as a postnuptial agreement. However, this requires the consent of both spouses and a court application and it is beneficial to discuss this and work through an attorney to manage this process. 

A marriage ceremony can take place almost anywhere, as long as the legal part of the ceremony is conducted or repeated in a church or other building used for religious services or in a public office (i.e. a Government office) or in a private dwelling house.

Basically, as long as the signing of the register/marriage certificate is done indoors.

Absoloutely!

You need to have a frank discussion with a lawyer who can assist not only with the legal requirements but to give both parties some important and realistic advice and checks about how marraige will affect your future - Obtaining good legal advice before you get married can save you an enormous amount of stress and expense down the line, not only in the unfortunate case of a divorce. Remember that your marital status can affect future issues like your financial liability for debts incurred, or the division of assets in the case of a divorce.

1. Register your intent to marry at a Department of Home Affairs office. This should be done at least three months before the wedding date. 

2. Pay the required fee for the marriage certificate and other administrative costs. 

3. Choose a marriage officer, either from the Department of Home Affairs or a religious institution, to officiate the ceremony. 

4. Schedule a date for the ceremony and obtain a marriage license.

5. Invite witnesses to the ceremony; you need at least two and they must be over 16 years old and understand the language used during the ceremony. 

6. After the ceremony, your marriage officer will submit the marriage register to the Department of Home Affairs, and you’ll receive your marriage certificate. 

7. Consulting with legal professionals or the relevant government authorities can help ensure that your wedding planning aligns with the legalities of marriage in South Africa.

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About Marriage in South Africa

In South Africa, the Matrimonial Property Act 88 of 1984 regulates how assets and liabilities are managed within different matrimonial regimes. Understanding these regimes is essential for couples planning their marriage or dealing with its dissolution, whether through divorce or the death of a spouse.

Marriage and Matrimonial Property

Matrimonial Property Systems

Marriage in Community of Property

This is the default regime when no antenuptial contract (ANC) is signed before marriage.

  • Joint Estate

 All assets and liabilities, whether acquired before or during the marriage, are pooled into a joint estate. Both spouses share equal ownership and responsibility for debts. Decision-Making: Major financial decisions, such as buying property or taking out loans, require both spouses’ consent.

  • Estate Division 

Upon divorce or death, the joint estate is divided equally, regardless of individual contributions. Joint liability for debts means if one spouse becomes insolvent, the entire joint estate is at risk which can be a challenge. 

Marriage Out of Community of Property

Couples who wish to keep their assets and liabilities separate must sign an antenuptial contract before marriage. This regime has two sub-options

  • Without Accrual System

Separate Estates: Each spouse retains ownership of their own assets and liabilities throughout the marriage.  No Sharing: Upon dissolution of the marriage, each spouse walks away with their respective assets and liabilities. 

Benefits Protects one spouse from the other’s debts or insolvency.

Challenges It can be inequitable for a non-working spouse who contributes to the marriage (e.g., raising children) but acquires no assets.

  •  With Accrual System

Separate Estates During Marriage Assets and liabilities remain separate during the marriage. Sharing on Dissolution: Upon divorce or death, the accrual (growth in value) of each spouse’s estate is calculated. The spouse with the smaller accrual can claim half the difference between the two estates.

Calculation Example

Initial Values Spouse A starts with R100,000; Spouse B with R200,000.

Final Values Spouse A’s estate grows to R400,000; Spouse B’s to R300,000.

Accrual Difference Spouse A owes Spouse B R100,000 to equalize the accrual.

Customisation Certain assets, such as inheritances, can be excluded from accrual calculations if specified in the ANC.

Challenges The spouse with the higher accrual may face liquidity issues, requiring asset sales or loans to settle the accrual claim.

Points to Consider 

Antenuptial Contracts (ANC) Must be signed before the marriage and registered with the Deeds Office within three months this allows couples to customise their matrimonial property regime, such as excluding the accrual system.

Financial Goals Couples should carefully consider their financial circumstances and long-term goals before choosing a regime.

Foreign Marriages The matrimonial property regime is determined by the husband’s domicile (permanent residence) at the time of the marriage. For example, if a South African marries an English resident in Mauritius, English law applies.

How we can help with Legal Guidance on all Matrimonial Matters  

Navigating the complexities of matrimonial property laws requires expert legal advice. Our family law attorneys in Johannesburg specialize in

  • Drafting and registering antenuptial contracts.
  • Advising on the financial and legal implications of different matrimonial property regimes. 
  • Assisting with disputes and estate division upon divorce or death. 
  • By securing sound legal advice, you can ensure that your chosen matrimonial regime aligns with your personal and financial goals, protecting your interests and avoiding potential disputes. Contact us to discuss your specific needs and let us help you make informed decisions about your marriage.