Marriage: A complex affair
Ah marriage! So the lovey-doveys decided to tie the knot and live in eternal happiness until death-do-you-part. You need to amend this to ‘until death or divorce do you part’. In this article, we explain the different kinds of matrimonial regimes under South African law. Consistent with our rich tapestry of a diverse population comes an equally diverse range of matrimonial regimes – some with the full protection of the law, some with only partial protection, and some with none. Marriage is a complex issue, and the various types of marriages possible under South African law are just as complicated.
Use this infographic for a snapshot of the Types of Marriages in South Africa.
Legal marriages / civil ceremonies
When one generally thinks of a legal marriage what springs to mind is having a marriage certificate and a wedding ceremony. Actually, and legally speaking, there is no requirement for a wedding ceremony – all you need from a legal perspective is to appear before a marriage officer (with two witnesses) who will do the formalities and a marriage certificate will get issued to you (referred to as a civil ceremony). The actual wedding ceremony where you have family, friends and a few people you wish never accepted, is not a legal requirement.
Under South African law, a legal marriage (ie evidenced by a marriage certificate) falls into four categories:
Between a man and a woman (in terms of the Marriage Act).
Between persons, regardless of sexual orientation, but generally in respect of members of the same gender (in terms of the Civil Union Act).
As recognised in South Africa (in terms of the Recognition of Customary Marriages Act).
That by default is considered an out of community civil marriage unless the couple agrees otherwise prior to getting married.
The advantages of a legal marriage are:
It is recognised and has full protection under the law.
The spouses have all the rights (and obligations) as defined by the law
The spouses have reciprocal obligations of supporting one another, and any children born of the marriage.
The disadvantage is that, as it is a formal process, the dissolution of the marriage through divorce is also a formal process, which only the courts have the authority to determine, ie the court will decide if valid grounds exist for the dissolution of the marriage (namely, irreconcilable differences), and then issue a decree of divorce. Such a decree will also cover the splitting of assets (read our post on how your pension fund interest is calculated upon divorce), spousal support, and child maintenance. Divorces under South African law are governed by the Divorce Act.
Nuptial agreements
A legal marriage is automatically regarded as being in community of property (and sharing of the profits and losses) unless the couple before the marriage enter into an agreement called an ante-nuptial contract (ANC, or pre-marital contract), where they elect to have their matrimonial regime to be out of community of property, and either with the accrual system or without the accrual system.
Such ANC needs to be signed before a notary public with two competent witnesses and is registered with the Deeds Office within three months of signature if signed in South Africa, and within six months if signed outside of South Africa. It is possible for the ANC to be signed before an attorney but then the attorney still needs to follow certain formalities before a notary public – it is easier just to sign before the notary public with the required witnesses. If the ANC does not get signed according to the requirements it can be declared null and void with the impact being that the marriage will be regarded as in community of property.
In community of property
Civil marriages (with the exception of Muslim marriages), civil unions and African customary marriages, being legal marriages, are automatically regarded as being in community of property. Marriage in community of property means the spouses’ respective estates prior to marriage will become one combined estate after the date of marriage and they will share in the profits and losses, or the benefits and risks, of having a joint estate on termination of the marriage (either on death of the one spouse or due to divorce decree granted by a court of law). I
f the marriage goes well and each spouse does not engage in any risky financial activities (eg starting a business or racking up debts) then it will be hunky-dory. Sadly, the reality is often far from the ideal. Love fades and marriages end in messy divorces; even if the couple are happy, if one or both engage in risky financial activities, it can put the joint estate in jeopardy. And then there is that nasty habit of dying, which can also bring risks to the joint estate, and in particular, for the surviving spouse.
If the one spouse has many debts (eg having interest in a business (and assuming the business is conducted as a sole proprietor or in a partnership with someone else, rather than through a company) that is not going well or having an uncontrolled gambling habit or incurring liability of some sort to a third-party) then the creditors can claim the debts from the other spouse as well. If both spouses cannot pay the debts there is a high likelihood that both of them could have the estate declared insolvent, which will be a blemish for both of them in their individual capacities when seeking credit, for example.
If the one spouse dies with more debt than assets, the creditors have similarly the right to claim against the other spouse since there is only one estate.
In the event of a divorce or dissolution of marriage, the estate will be split equally between the former lovey-doveys, which means assets will need to be sold for it to be evenly split. Not so rosy anymore.
Knowledge or ignorance of the other spouse's debts is not a requirement – the joint estate is still at risk.
It is generally advisable for the lovey-doveys, prior to the legal marriage, to elect to have their marriages subject to an ANC, either with the accrual or without the accrual system to avoid the risks mentioned above. When you read about the requirements for an ANC, you may be tempted to just err on the side of love and go for the easiest option being the default one, ie marriage in community of property. However, marriage is a serious matter, and you and your loved one need to think about the real-life risks if things turn sour (whether due to death or divorce or the spouse(s) engaging in risky financial activities that can place the joint estate at risk from creditors).
Out of community of property
If the couple decides not to take the risk of marriage in community of property, they need to sign an ANC, and with this they have two options – marriage out of community of property without the accrual system or with accrual. The ANC will specify which of these two options the future spouses are electing. A Muslim marriage is by default out of community of property unless the couple agrees otherwise.
Out of community of property without accrual
This means the assets and liabilities of the one will not belong to the other. If the one spouse runs into debt problems then the creditors cannot seize and sell the assets of the other spouse. In the event of death or divorce, both estates will be treated as completely separate. Note that even when a marriage is subject to out of community of property and without accrual system applying, the spouses still have rights and obligations in terms of children born of the marriage or for joint purchases, eg the family home if bought by both.
Out of community of property with accrual
With the sharing of profit and loss means the estates are still treated as separate but the couple will share the difference in any growth (or loss) of the other spouse’s estate on the date of dissolution of the marriage (through death or divorce). The spouse whose estate has grown more during the existence of the marriage will have to pay half the difference as compared to the growth (or loss) of the other spouse’s estate (after deducting all expenses owed to creditors).
Example:
In terms of the ANC, spouse A values her estate at R100 and spouse B values his estate at R50. On the date of dissolution of the marriage (whether through death or divorce), spouse A’s estate is calculated as being R1000 while spouse B’s estate is R500. The difference in the growth of spouse A verses the value of spouse B’s estate is as follows:
For spouse A: R1000 - R100 = R900, while spouse B's estate is calculated as: R500 - R50 = R450. The difference in growth between spouse A and spouse B is therefore: R900 - R450 = R450. Spouse A under the accrual system now owes half the growth to spouse B, ie R225.25.
The advantage of the accrual system is that the future spouses have the flexibility to structure the ANC in a mutually agreed manner:
Exclude certain assets or liabilities from the accrual, such as inheritances the one gets from someone else like their parents or grandparents.
Exclude certain current or even future business or other assets from the accrual system.
Define the value of each estate any way they want to, even valuing each or only one estate at zero. There is no requirement to be exact in valuing the estate on the date they enter into the ANC.
Can you change your matrimonial regime after entering into a legal marriage?
Yes, you can but you can only do so by bringing a court application to change the marriage.
For example, from in community of property to out of community of property, the requirements are:
Providing a sound reason for wanting such a change.
Providing a draft of the proposed ANC.
Advertising the change in the government gazette and newspapers.
Advising all creditors of the spouses (who have actual or potential/contingent claims) of the proposed change. Any of the creditors can object to such change if they deem it prejudicial to their interests due to a claim the creditor has against one of the spouses.
Providing a list of the assets and liabilities of the spouses.
Whether either spouse has been sequestrated (or is in the process of being sequestrated) or has any rehabilitation order
Providing information on any current or pending legal proceedings where a debt is being claimed.
Such a formal process takes time, money and effort, and a court will likely not grant such an application if a creditor objects and has a valid reason, or the spouses have not provided a justifiable reason for a change in the matrimonial regime, or the spouses have not made full disclosure of the facts. Only once the court is satisfied that all required steps have been followed and no creditors (actual or potential) are prejudiced will it grant an order allowing for the change in the matrimonial regime.
Civil unions
A civil union between consenting adults is a form of legal marriage, and generally applies to members of the same gender. South Africa is the only country on the African continent to allow legal marriages for LGBTQIA+ members of society and is one of the first countries to allow such marriages.
Customary marriages
African customary marriages, as recognised under South African law, are legal marriages provided the marriage is registered with the Department of Home Affairs within three months or through a designated traditional leader if no Home Affairs office exists in the area where the couple resides. It should be noted that a man may enter into more than one customary marriage provided the further marriages are sanctioned by a court of law where the regulation of matrimonial property of the marriages is sanctioned. In the absence of a court approving such further marriages, they will be regarded as invalid and void, and only the first marriage will be regarded as the legal one. A man may furthermore enter into one or more customary marriages as well as a separate civil marriage or civil union provided the conditions are met under the relevant laws.
Muslim marriages
Muslim weddings have only recently been legally recognised as civil marriages. The Department of Home Affairs will register and note the marriage as being 'Muslim' on the marriage certificate. By default, they are considered out of community of property unless the couple has agreed otherwise prior to getting married. Why the Department of Home Affairs did not take the opportunity to recognise other religious marriages (like Hindu and Jewish) at the same time is perplexing as it is unjustifiably discriminatory.
Common law marriage
A couple may be cohabiting or have entered into a domestic partnership together for many months, years or even decades without getting legally married or they may have a ceremonial wedding without getting legally married – this relationship is referred to as common law marriage. Until very recently the law provided few to no protections to such relationships, for example, there would be no automatic right to claim any retirement funds when one spouse passes unless that spouse specifically named the other as a beneficiary. In the absence of being a named beneficiary, the retirement fund trustees are nevertheless obligated under pension fund laws to determine if there are any dependents. The surviving spouse would have to submit a claim to the pension fund trustees, and would have to prove that they were in fact a dependent.
As common law marriages are not legal marriages, if the couple decides to separate then no divorce decree or proceeding is required, and if a dispute arises then the legal protections of a legal marriage would not be available to them. There are plans to provide some legal protections to such couples under the Domestic Partnership Bill (which has been a Bill since 2008 but has still not been passed into law). The Constitutional Court also recently held (in the case of Jane Bwanya vs The Master of the High Court) that the exclusion of common law spouses in a committed relationship with a reciprocal obligation of support violated fundamental rights under the Bill of Rights when it comes to that spouse claiming under the laws of intestate (ie law governing when a person dies without a will) and that such spouses should be treated equally as those who enter into legal marriages. The Court afforded Parliament time to amend the intestate law (the Intestate Succession Act), and also the Maintenance of Surviving Spouses Act.
Although the proposed changes in terms of the Domestic Partnership Bill (which has been pending for too long) and the Constitutional Court decision in the Jane Bwanya case are laudable, the hurdles will continue to remain that common law spouses will still have to prove their relationship and that there was a reciprocal obligation of support. In the case of a legal marriage, the marriage certificate would in itself suffice as evidence of the relationship and the obligation of support.
To protect one another, common law spouses should ensure that any retirement funds (ie pension, provident and retirement annuity funds) they contribute to specifically name their spouse as a beneficiary, and similarly with life insurance policies (assuming that is their wish). It would be advisable also for the spouses to enter into a valid will where they would make provision for the other spouse to be an heir or to bequeath certain assets (like the home) to the surviving spouse. It would further be advisable for common law spouses to enter into a written domestic partnership agreement or cohabitation agreement where they set out their assets and liabilities, and how each spouse’s financial contribution to the joint home, etc.
For more information, read our post Drafting a Cohabitation Agreement.
Religious marriages (Hindu, Jewish, and other religious weddings)
With the exception of Muslim weddings, Hindu, Jewish, and other types of religious weddings, conducted under the marriage ceremonies in terms of Hindu, Jewish, or other religious rites or customs, have not had much if any legal recognition under South African law and have been regarded as ‘putative marriages’. A putative marriage is a marriage that is void and invalid and therefore has no legal status. Effectively, women in particular, were placed in a precarious and vulnerable position when it came to claiming for divorce (which is not possible due to there being no legally recognised marriage), succession law (ie inheriting due to the spouse being deceased whether with or without a will) or maintenance for the children (children would be regarded as being born out of the marriage and hence illegitimate). Couples who entered into such religious marriages could only obtain legal protection under the Marriage Act or the Civil Unions Act if they entered into a civil ceremony before a marriage officer and two witnesses. The reason for the lack of recognition of Hindu, Jewish and other religious weddings has been cited as being due to the polygamous nature that prevails among these communities, and this being against public morals (contra bones mores). This is a curious and discriminatory practice when one considers that the law recognises African customary laws allowing for a man to have multiple customary marriages (and even a civil marriage or civil union).
Although Muslim weddings have recently been given legal protection, it seems inimical that other religious weddings would not be similarly recognised and given the same legal status as any other marriages under South African law. Why the same was not done for Hindu (and other religious weddings not being Christian or African customary in nature) is perplexing and discriminatory. If the legal concern is that such marriages give rise to polygamous marriages then surely this is only the case where the one spouse, a man, would take more than one wife, and not all cases.
Conclusion
In summary, and some final thoughts:
Legal marriages under South African law currently only relate to civil marriages, civil unions, and African customary marriages. Muslim marriages also now have similar legal protections as any other legal marriage.
For a marriage to be legal, it must be before a marriage officer and two witnesses (ie a civil ceremony) and a marriage certificate issued.
All legal marriages are regarded as being in community of property (a joint estate) unless the spouses, prior to the legal marriage, enter into an ANC before a notary public who will register the ANC at the Deeds Office.
An ANC is a marriage out of community of property and can be subject to either no accrual (both spouses’ estates remain separate) or in accrual (where the spouses share the estate of the spouse that has grown more than the other).
Common law marriages until recently had little legal protections but the courts have given Parliament time to amend the relevant laws to provide similar rights as those enjoyed by those who enter into legal marriages.
African customary marriages are legal and must be registered, and a man may enter into more than one customary marriage provided a court of law approves it.
Hindu, Jewish, and other religious marriages (which are not Christian, Muslim, or African customary in nature) do not have any legal recognition, and this is a discriminatory practice that has no discernible justification.
Women and children still face significant discrimination due to the lack of recognition of other forms of marriage other than legal marriages, and this violates their rights under the Bill of Rights such as their right to dignity, freedom of religion, equality, free from discrimination, and the best interests of the child.
Polygamy under African customary law is permissible but not under other religious marriages, which is discriminatory.
A man, at least under African customary law, is allowed to have more than one wife but not a woman, which is also discriminatory.
The plethora of legislation covering marriage in South Africa is a hodge-podge, and there should be steps taken to make a single overarching law that gives equal protection to all types of marriages.
The courts have been more willing to come to the aid of the most vulnerable, generally women and children, when it comes to abusive elements of the South African matrimonial regimes (recognised and unrecognised) compared to the lawmakers who are failing to meet their basic constitutional obligations to amend laws to comply with the Constitution and specifically the Bill of Rights.
To give yourself and your future spouse the maximum protection under law, it is advisable to have a civil ceremony (ie a legal marriage before a registered marriage officer and two witnesses, and the issuance of a marriage certificate) and strong consideration should be given to having an ANC. You should seek legal advice when drafting an ANC. Furthermore, you should speak to your financial advisor to ensure your retirement and life insurance policies provide adequately for your spouse and children born of the marriage as named beneficiaries, and speak to a lawyer/financial adviser to draft a valid will, which similarly protects the interests of your dependents in accordance with your stated wishes.
Have questions about your matrimonial regime? Share your thoughts and experiences in the comments below. Don't forget to share this post to help others navigate the complexities of marriage under South African law! Let's start a conversation.
Key legislation: Constitution of the Republic of South Africa (Act 108 of 1996); Civil Union Act 17 of 2006; Marriage Act 25 of 1961; Divorce Act 70 of 1990; Maintenance of Surviving Spouses Act 27 of 1990; Recognition of Customary Marriages Act 120 of 1998.
This blog has been updated to reflect changes to the recognition of Muslim marriages.
To view a short-form infographic on the Types of Marriages in South Africa that acts as a quick reference guide, click on the image below.
The information provided is for information purposes and does not constitute legal advice. Contact a lawyer should you require assistance. Legal Dynamix is not a law firm and does not provide legal advice on the subject matter contained herein.
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