The formalities are regulated by the Marriage Act, 25 of 1961 and the provisions of that Act apply to all civil marriages in South Africa. All marriages between a man and a woman or couples of the same sex must be solemnised by a person who has been legally appointed as a marriage officer. If one of the parties is not a major the consent of the Minister of Home Affairs will be required and if one of the parties is under the age of 21 it will be necessary for that party to be assisted by his/her parents. The High Court is always the upper guardian of all children and it can overrule or make any ruling which it deems fit in respect of any marriage which involves any person under the age of 21. If the Minister and parents refuse to consent to the marriage then that potential spouse must approach the High Court for permission before the marriage can take place.
There are a number of different types of marriages in South Africa (a marital dispensation). This is governed by the provisions of the Matrimonial Affairs Act. The common law in South Africa provides that a marriage without an Antenuptial Contract will result in the parties entering into a marriage in community of property. This means that a joint estate is formed and each spouse will become joint administrators of that estate. All assets are shared between the parties and each party becomes jointly and severally liable for all the debts incurred by either party to the marriage. In general, each party has the right to dispose of the assets of the joint estate. However, in some cases, the consent of the other party is required to alienate the assets of the joint estate and in other cases written consent may be required. This is a fairly complicated aspect of the law and at the first consultation with any potential client we will be able to explain the important provisions of the Marriage Act, Matrimonial Property Act and the common law affecting the rights of each spouse concerning the assets of the joint estate. In consequence, what emerges from a marriage in community of property is financial equality to the exclusion of juristic equality in such cases where consent of the other party is required in certain circumstances to deal with the estate assets. The danger of entering into a marriage in community of property is that one of the spouses may run up a large amount of debt and the assets of the joint estate are exposed to the creditors attaching the assets and selling the assets by way of execution. The situation with regard to insolvency is that if an application is brought against one of the parties and is sequestrated the other spouse to the marriage will also have to be sequestrated and all the assets of the marriage will fall into the insolvent estate. This could prove to be highly detrimental to either or both parties.
Marriage out of community of property
It is possible to enter into an Antenuptial Contract prior to the marriage which regulates the proprietary affairs of the parties after the marriage. This contract must be executed by a Notary Public and registered with the Registrar of Deeds in Pretoria. The same goes for marriages out of community of property with accrual. In essence, the contents of the Antenuptial Contract for a marriage out of community of property will specifically exclude the community of property and profit and loss. In other words, in plain English, this will mean that “what’s yours is yours and what’s mine is mine”. This marital regime is often chosen by couples who have substantial income and estates at the time of the marriage.
Marriage out of community of property with accrual
Here again the parties enter into an Antenuptial Contract where the community of profit and loss is specifically excluded but also sets out how the profits emanating from the assets are shared. The legal term for profits is accrual which means the amount by which the assets have appreciated since the time of marriage. When the marriage is dissolved either by way of death or divorce the estate value is estimated separately and one half of the estate with the greater accrual will be transferred to the other estate with a smaller accrual after taking into account the consumer price index and other factors. There are also other unions such as universal partnerships and how these are dealt with but the notion of a “common law marriage” does not exist in South Africa in the eyes of the law. We can advise you on the universal partnership and important aspects relating thereto and in particular reciprocal obligations of maintenance and what the co-habitees are entitled to and other important matters such as tax on donations between them and whether or not one of the co-habitees is entitled to claim if the other co-habitee dies intestate.