MARRIAGE – NOT ONLY AN “I DO”

We may still be in the middle of a pandemic, but life and love have not slowed down in the slightest.  Civil Marriage in South Africa, governed by the Marriage Act 25 of 1961 and regulations in terms thereof, requires more than a simple “I do”.

Civil marriages accommodate monogamous, heterosexual marriage and are automatically in community of property unless a valid ante-nuptial contract has been entered into before a notary public before the date of marriage.  It is therefore imperative to understand the legal and financial consequences of each matrimonial property law regime.  Spouses may choose between the following three regimes that will apply:

Marriage in community of property

This comprises one consolidated joint estate with an equal and undivided share in assets and liabilities.  In other words, a husband and wife are co-owners and all property brought into the marriage and all property accumulated during the marriage falls into the joint estate unless specifically excluded – for example inheritances.  Both spouses enjoy equal management over this joint estate and the economically weaker spouse is not prejudiced.  However, while this may the cheapest and most common regime as it is the default option, there are a number of disadvantages.  All debts incurred before and after the marriage can be recovered from the joint estate and the whole joint estate will be subjected to any sequestration.  The estate is therefore not protected from creditors of one spouse.  Consent of the other spouse is also required for certain transactions like selling immovable property or entering into a credit agreement.  If the husband and wife cannot reach an arrangement on the division of the joint estate by way of a settlement agreement in the event of divorce, the court is authorised to appoint a liquidator wherein the assets are divided on behalf of the joint estate.

Marriage out of community of property without accrual

A marriage will be subject to the accrual system unless specifically excluded in the ante-nuptial contract.  The parties retain their separate estates prior to the marriage and throughout subsistence of the marriage.  They are liable for their own debts and liabilities, creditors may not pursue assets belonging to the other spouse and there are no claims against each other upon dissolution.  However, a stay-at-home spouse will be unable to grow their estate during the marriage and their contributions in running the household is not taken into account. 

Marriage out of community of property with accrual

Accrual is governed by the Matrimonial Property Act 88 of 1984.  The parties also retain control over their separate estates, however, at the end of the marriage (either through death or divorce) the growth in the two separate estates will be shared equally.  This ensures that both spouses gain a fair share of the estate.  The net value of the parties’ estates is calculated and declared before the date of marriage but spouses may agree that certain assets and any increase or growth thereon be excluded from the accrual.  This regime is the most equitable in considering that one spouse may decide to stay at home or contribute other than financially.