Types of marriages in South Africa
There are three types of marriages recognised under South African law: civil marriages, customary marriages, and civil unions.
There is also a fourth type of marriage, namely a religious marriage. For example, Jewish, Hindu, and Muslim marriages. However, a religious marriage is not recognised as a legal marriage under South African law. Although, spouses in a religious marriage are protected by law in certain situations.
Civil unions
Civil unions, also referred to as civil partnerships, were legalised in South Africa in 2006 by the Civil Union Act (Act 17 of 2006). The Act allows, inter alia, same-sex marriages. Spouses married in a civil union have the same legal rights and responsibilities as those in a civil marriage.
Customary marriages
The Recognition of Customary Marriages Act (Act 120 of 1998) regulates customary marriages. According to the particular Act, the marriage must be negotiated and celebrated in accordance with the prevailing customary law, implying that the marriage must be entered into according to the traditions and customs of the parties involved.
A customary marriage will receive full legal protection regardless of whether it is monogamous or polygamous.
Civil marriages
Civil marriage is the most common form of marriage in South Africa and can only be performed between a man and a woman. The Marriage Act (Act 25 of 1961) regulates the solemnisation of civil marriages in South Africa.
Spouses can be married in or out of community of property.
Marriage out of community of property
Basically, a marriage out of community of property is a civil marriage in which the spouses prefer to keep their estates separate, implying that all the assets and liabilities they individually owned or are accountable for will remain part of their separate estates. Each spouse has full control and disposal rights over his or her assets and may bequeath them to whomever her or she wishes in a single or joint will.
A marriage out of community of property is arranged by a notary, drawing up an antenuptial contract (ANC) before a marriage. The document is registered at the Deeds Office. An ANC is a document that determines whether a marriage will be out of community of property with or without the accrual system.
There are two types of antenuptial contracts available to spouses:
- An ANC that excludes community of property, community of profit and loss, and the accrual system.
- An ANC that includes the accrual system, but also, excludes community of property and community of profit and loss.
What is the accrual system?
Simply put, the accrual system is utilised to indicate the net increase in the value of a spouse’s estate since the marriage was performed. In other words, what both spouses have earned and amassed during the marriage belongs to both of them.
Spouses may exclude the accrual system in their ANC. However, if the exclusion is not explicitly stated, the accrual will be applicable.
Marriage in community in property
If no ANC is entered into before a marriage, the marriage will by default be in community of property, also referred to as a marriage without an ANC.
When a community of property marriage is established a joint estate is created, joining the estates (assets and liabilities) of the spouses together. A joint estate is also referred to as a communal estate or community estate. An individual who is married in community of property is only a half owner of the communal estate and simultaneously and equally a manager with the other spouse of the joint estate.
On the termination of a marriage (either by death or divorce), the joint estate is shared equally between the spouses, irrespective of the amount of their individual contributions.
When a spouse in a community of property marriage dies, only half of the community estate will be subject to estate duty.
With regard to marriages in community of property, the following aspects are important:
Assets
All assets belonging to the spouses before their marriage as well as the assets acquired by either spouse during the marriage will be part of the community and will be shared equally between the spouses. (This is called community of profit and loss.) However, there are exceptions, for example:
- If the spouses wish that any property should be excluded from the community, then a separate ANC must be drawn before the marriage in which the exclusion is described.
- Gifts and inheritances received by a spouse from third parties are excluded from the joint estate on the condition that it is stated that they are excluded. Be aware, assets like these are automatically included until specifically excluded.
Liabilities
Spouses are jointly liable for each other’s liabilities – liabilities incurred prior and during the marriage. Such debt may comprise, inter alia, contractual debt, such as credit card payments, car loans, and personal loans, as well as maintenance payable to an ex-spouse or children from a previous marriage.
Insolvency
When one spouse becomes insolvent (unable to pay debts owed), both spouses will be declared insolvent. A court order against either one of the spouses will jeopardise the joint estate.
Retirement fund benefits
The Pension Funds Act (Act 24 of 1956) regulates that a non-member spouse is entitled to claim 50% of the pension interest of the member as at the date of the divorce.
Furthermore, the Pension Funds Amendment Act of 2007 introduced the so-called ‘clean break’ principle, which is described as follows by Clement Marumoagae in an article in De Rebus on October 1, 2013: ‘… a right or, at the very least, the entitlement of the non-member spouse who is married in community of property to receive immediate payment or transfer of the portion of the other’s spouse’s pension interest allocated to him or her when the couple divorces.’ (Accentuation by the article writer.)
Previously, the non-member spouse was only permitted access when the member spouse exited the particular fund.
Management of the community estate
Each spouse has the authority to perform actions in terms of the community estate. A number of actions can be executed without a spouse’s consent. However, the Matrimonial Property Act (Act 88 of 1984), Chapter III, paragraph 15, categorises various instances where consent is required from one’s spouse. In an article, written by Peter McRae-Samuel on the website, Polity, of Schoeman Law Inc, the types of consents are summarised as follows:
No consent needed
No consent required means one spouse is allowed to act independently, performing transactions that bind the joint estate. Examples are:
- entering into transactions on the stock exchange;
- starting a company or trust;
- making deposits at a banking institution;
- selling certain moveable assets, such as a car;
- making donations to third parties that do not prejudice the other spouse;
- entering into a contract in the ordinary course of his or her business; and
- performing transactions in the ordinary course of his or her business, trade, or profession.
Informal consent required
Informal consent refers to a situation when oral consent is considered sufficient. Situations such as:
- receiving money that is due do the other spouse, from sources such as:
- the proceeds of an insurance policy;
- dividends or interest on investments in their name;
- remuneration, bonuses, allowances, earnings, a pension, a gratitude for services rendered or by virtue of their profession, trade or business, or damages awarded for the loss of income from any aforementioned sources;
- income from his or her separate property, for instance, rent money earned from renting an immovable property;
- the alienation or burdening (i.e. selling and pledging) of common household furniture, such as washing machines, stoves, bicycles, or pets; and
- donating from the joint estate where the donation unreasonably prejudices the interests of the other spouse, such as donating furniture from the common household.
Written consent required
The following acts are only allowed with the written consent of one’s spouse:
- alienating or burdening assets of the joint estate, kept mainly for investment purposes, such as stamps, works of art, jewellery, or coins;
- alienating, ceding, or burdening insurance policies, mortgage bonds, fixed deposits, shares, stocks, or any of the other spouse’s investments at any financial institution; and
- withdrawing money from any account held in the name of the other spouse.
Written consent with two witnesses required
The following acts may only be executed with the written consent of the other spouse and co-signed by two witnesses:
- alienating immovable property, such as a house, townhouse, or farm, belonging to the joint estate;
- entering a credit agreement in terms of the National Credit Act (Act 34 of 2005); and
- entering into a contract to purchase immovable property.
Prior written consent with two witnesses
Certain acts may only be performed by one spouse with the prior written consent of the other spouse, co-signed by two witnesses. Such a transaction cannot be ratified at a later stage. Such acts are:
- entering into a contract of surety, where one party binds the joint estate as a surety for debt of a third party; and
- the actual alienation or burdening of immovable property belonging to the communal estate or the actual granting of the rights (selling or giving a third party a share in the property) over such immovable property.
What are the consequences when the required consent is not obtained?
When a spouse carries out a transaction without obtaining the other spouse’s consent, the South African law is on the side of the of third party with whom the spouse contracted.
The transaction is considered valid if the third party does not know or cannot reasonably have known that consent was not obtained.
However, eventually, our law does provide the blameless spouse some protection. When the community estate is divided at the end of the marriage, the court will implement an adjustment, compensating the innocent spouse accordingly.
Can spouses in a community estate sue each other?
Spouses married in community of property are not allowed to sue each other for damages. It makes no sense because it will create a situation where money taken from the communal estate will simply be paid back to the estate.
Although, a spouse can sue the other spouse for non-financial loss arising out of bodily injuries caused by an act of negligence.
The division of assets on divorce
Upon divorce, the joint estate will be divided equally between the two spouses.
However, spouses have full contractual freedom when negotiating and agreeing upon a divorce settlement. The parties have the following options when dividing their assets:
- to strictly apply their matrimonial property regime, or
- a negotiated settlement that is more suited to their specific circumstances.
Keep in mind that if a settlement agreement cannot be reached, the court is allowed to appoint a liquidator to divide the assets of the communal estate.
Furthermore, Section 9(1) of the Divorce Act allows the court discretion to grant a forfeiture order to a spouse who claims forfeiture. A forfeiture order cannot be granted automatically and must be specifically requested in the summons.
Granting a forfeiture order implies that, taking the spouses’ circumstances into account, the court may order that one party forfeits their patrimonial benefits to the other where it finds that the party will be unduly benefitted in relation to the other as a consequence of the marriage.
A gift received during the marriage is not included in the assets that a spouse can forfeit. In addition, a spouse cannot forfeit assets that he or she brought into the community estate.
Advantages of marriage in community of property
- No need to enter into a special contract before getting married.
- It tends to help the financially weaker or financially unstable spouse.
- It promotes the concept of equality in terms of finances, legal matters, and oneness in communication.
Disadvantages of marriage in community of property
- The economically stronger spouse has to share his or her assets with the other spouse.
- The management and administration of a joint estate is quite complicated.
- In a problematic marriage, it can become difficult to obtain joint consent.
- Spouses are jointly liable for each other’s liabilities and debts. This is almost the most devastating consequence of a marriage in community. If one spouse becomes insolvent, both spouses will be declared insolvent.
- If one party acts irresponsibly, then the other person is also accountable for his or her acts.
Can a marriage in community of property be changed?
It is possible according to article 21(1) of the Matrimonial Property Act for a couple to jointly apply to a court for leave to change the matrimonial property system which applies to their marriage.
If the court is satisfied that certain requirements have been met, the court may order that the specific matrimonial property system shall no longer apply to the couple’s marriage and authorise them ‘to enter into a notarial contract by which their future matrimonial property system is regulated on such conditions as the court may think fit.’
Requirements for such an application are:
- sound reasons for the proposed change;
- sufficient notice of the proposed change to all the creditors of the spouses; and
- no other person will be prejudiced by the proposed change.
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