South Africa presents with various different types of marital contracts whereby a couple can enter a marriage relationship, each with different implications and characteristics. Couples may enter a marriage relationship in terms of either a civil marriage, a civil union or a customary (religious) marriage.
It is of utmost importance for couples to comprehend the meaning of such marital contracts and the implications of such on the marriage relationship and on the couple as spouses before tying the knot. To provide some clarity regarding these types of marital contracts we shall explore such contracts for your peace of mind.
Civil marriage in South Africa:
A civil marriage refers to a union between one man and one woman and recognised by the Marriage Act, Act 25 of 1961. Only authorised marriage officers are allowed to conduct such civil marriage between a man and a woman, these officers being a magistrate, a minister of religion and an individual licenced to conduct a marriage.
The sub-classifications of a civil marriage is determined by the presence, alternatively the absence of a binding antenuptial agreement between the spouses. An antenuptial agreement is contract that determines how the assets of the spouses shall be divided in the event of divorce, save for further application of South African Law.
In the absence of a legally binding antenuptial agreement, a civil marriage between a man and a woman shall automatically be deemed in community of property resulting in the estates of the husband and wife being joined as a single estate.
When an antenuptial agreement is concluded between spouses, the marriage relationship is deemed out of community of property.
A marriage out of community of property, where an antenuptial agreement had been concluded between the spouses, can either be subject to the accrual or not. In the event that a marriage out of community is with the accrual, the difference in growth of the spouses’ estates shall be divided equally having regard to the value of the estates at date of divorce. Where the accrual is excluded, each party’s assets shall remain his or her sole property.
Recapping a civil marriage, the following sub-classifications are present:
- Marriage in community of property (no antenuptial agreement);
- Marriage out of community of property (antenuptial agreement subject to the accrual system);
- Marriage Out of Community of Property (antenuptial agreement excluding the accrual system).
Civil Union in South Africa:
A civil union is a marriage relationship entered into between two persons of the same sex and which marriage relationship is governed by the provisions of the Civil Unions Act 17 of 2006. Civil unions are automatically deemed to be in community property, unless an antenuptial agreement is concluded between the spouses to such union.
The implications of such civil union, being in community or out of community of property, is the same as a civil marriage as discussed prior in this article.
Customary marriage in South Africa:
A customary marriage, also known as a traditional marriage, is a union defined and regulated in terms of the Recognition of Customary Marriages Act 120 of 1998 (known as the “RCMA”). A customary marriage is a union in terms of the customary practice and usage that are integrated in the culture of South Africa’s indigenous African Community. Registration of a customary marriage is not concrete proof of the existence as further requirements are developed by the RCMA being:
- The potential spouses must be older than eighteen years of age;
- Both must agree (consent) to marry one another;
- The marriage must be arranged and celebrated in conformity with customary law.
Customary marriages can be either polygamous or monogamous. Diverse cultures in South Africa have different criteria for what defines a custom-compliant marriage. Customary marriages are further deemed automatically in community of property unless the parties enter an antenuptial agreement as discussed in the article.
For expert legal advice custom to your needs contact Edrich Rood and Associates to book your consultation. At Edrich Rood and Associates we shall ensure peace of mind from day one
Author: Theo Duvenage – Candidate Attorney: EDRICH ROOD AND ASSOCIATES