Family Law

MARRIAGE – THE LAW RELATING TO HAPPILY EVER AFTER

By 25/03/2014 July 1st, 2020 No Comments

While the celebration of the union between 2 (two) people who love each other and the solemnization of their commitment to one another is a joyous and wondrous event, what is even more wondrous is the common mistake that couples make in failing to properly inform themselves of the various matrimonial regimes and the various consequences they create for the couple. This failure by the couple intending to conclude a marriage potentially gives meaning to the old phrase that “love is blind”, but in the present economic and social environment, and bearing in mind the public’s accessibility to information , it is important that future failures be prevented.

In an attempt to prevent such failures and to inform interested parties about the legal aspects of marriage in South Africa this article will briefly explain the matrimonial regimes which are operational and available in the Republic for those parties who wish to be married.

Prior to dealing with the various matrimonial regimes it is important to dispel some of the myths regarding matrimonial law in South Africa:

  • Presently South African law does not recognise the existence of a common law marriage or spouse and the idea is a fiction which does not exist in our legal system.?(For a full discussion of this topic, kindly refer to our article entitled “THE COMMON LAW SPOUSE – FACT OR FICTON”)
  • The position of a husband having marital power over his wife during the subsistence of a marriage was abolished by the promulgation of the Matrimonial Property Act in 1984.
  • Same-sex marriages are legal and are subject to the same matrimonial laws as any other marriage in South Africa in terms of the Civil Union Act of 2006.
  • There are actually 3 (three) ways in which a person can conclude a marriage in South Africa.
  • Customary marriages are not common law marriages and are governed by the terms of the Recognition of Customary Marriages Act.

Having dispelled some of the myths around matrimonial law we can now examine the various matrimonial regimes which a couple may choose to conclude and govern the marriage.
In South Africa there are presently 3 (three) matrimonial regimes, namely:

  • Marriages In Community of Property;
  • Marriages Out of Community of Property with the operation of the Accrual System; and
  • Marriages Out of Community of Property without the operation of the Accrual System.

MARRIAGES IN COMMUNITY OF PROPERTY:

The default matrimonial regime which applies in South Africa is that of a marriage in community of property. This matrimonial regime automatically applies to any marriage in South Africa unless the parties to the marriage conclude an Ante-nuptial Contract prior to the date of the marriage.

At the time of a marriage in community of property the 2 (two) separate estates of the spouses become 1 (one) single joint estate, meaning that all property, whether movable or immovable, assets and liabilities that belong to both parties at the time of the marriage or obtained thereafter form part of the joint estate. The joint estate itself becomes owned by both parties in equal undivided half-shares and is administered by the parties jointly.

While both parties are joint administrators of the joint estate and can generally dispose of any of the assets of the joint estate as they deem fit, Section 15 of the Matrimonial Property Act places restrictions on spouses when binding the joint estate in certain circumstances and requests that formal consent be provided in writing by the other spouse.
ADVANTAGES OF MARRIAGES IN COMMUNITY OF PROPERTY:

  • 1 (one) single joint estate;
  • Both spouses are owners of an undivided half-share of all the assets of the joint estate;
  • There is equality between the parties.

DISADVANTAGES OF MARRIAGES IN COMMUNITY OF PROPERTY:

  • If one of the parties is declared insolvent it will render the joint estate, including the undivided half-share of the other spouse insolvent to;
  • When a spouse dies the administration of the joint estate may frustrate the surviving spouse and present financial difficulties and stress;
  • If one party fails to be supportive, co-operative or to contribute towards the joint estate it may cause inequality and unfairness in the marriage.

MARRIAGES OUT OF COMMUNITY OF PROPERTY WITH THE OPERATION OF THE ACCRUAL SYSTEM:
A marriage out of community of property can only be concluded if the parties to the intended marriage conclude an Ante-Nuptial Contract prior to the date of marriage.

In any marriage out of community of property the 2 (two) estates of the spouses remain separate during the marriage and each spouse remains solely responsible for the administration of his/her estate, including being responsible for any and all property, assets and liabilities of the estate.

Since the promulgation of the Matrimonial Property Act in 1984 all marriages out of community of property are automatically subjected to the operation of the Accrual System, unless the parties include a specific clause in their Ante-Nuptial excluding the operation of the system.

The operation of the Accrual System basically means that when the marriage is dissolved, by death or divorce, the spouse whose estate has grown the least during the marriage will be entitled to claim and receive half of the difference between his/her estate and the estate of the other spouse.
ADVANTAGES OF MARRIAGES OUT OF COMMUNITY OF PROPERTY WITH THE OPERATION OF?     THE ACCRUAL SYSTEM:

  • 2 (two) separate estate for each spouse;
  • Creditors of one spouse cannot attach assets belonging to the other spouse’s estate;
  • If one spouse is declared insolvent it does not render the estate of the other insolvent to;
  • No permissions or restrictions are placed on either spouse in respect of administering or disposing of any property of their estate.

DISADVANTAGES OF MARRIAGES OUT OF COMMUNITY OF PROPERTY WITH THE OPERATION OF THE ACCRUAL SYSTEM:

  • Accrual System only operates in respect of the growth that happens during the marriage and does not include property obtained before the marriage;
  • There is a risk upon dissolution of the marriage that one spouse will end up with a large estate and the other with a small estate.

MARRIAGES OUT OF COMMUNITY OF PROPERTY WITHOUT THE OPERATION OF THE ACCRUAL SYSTEM:

As previously mentioned a marriage out of community of property can only take place if the parties to the intended marriage conclude an Ante-nuptial Contract prior to the date of the marriage.

Bearing in mind that the Accrual System automatically operates in marriages out of community of property, should the parties not wish for the system to operate, the parties must ensure that a term expressly excluding the operation of the Accrual System is included in their Ante-nuptial Contract before signing it.

A marriage out of community of property without the operation of the Accrual System is the only matrimonial regime that achieves a total separation of the spouse’s respective estates and does not allow for any claims by one spouse against the estate of the other upon the dissolution of the marriage, by death or divorce. The separation of the estates in this matrimonial regime would apply to all property, assets and liabilities, whether they were obtained before or during the marriage.
ADVANTAGES OF MARRIAGES OUT OF COMMUNITY OF PROPERTY WITHOUT THE OPERATION? OF THE ACCRUAL SYSTEM:

  • 2 (two) separate estate;
  • Creditors of one spouse cannot attach assets belonging to the other’s spouse’s estate;
  • If one spouse is declared insolvent it does not render the estate of the other insolvent to;
  • No permissions or restrictions are placed on either spouse in respect of administering or disposing of any property of their estate.
  • If there are minor children from a previous marriage, this matrimonial regime could protect their interests;

DISADVANTAGES OF MARRIAGES OUT OF COMMUNITY OF PROPERTY WITHOUT THE OPERATION OF THE ACCRUAL SYSTEM:

 

  • Upon dissolution neither spouse has any claim against the other, except a potential claim for spousal maintenance;
  • May be prejudicial to stay at home parents.

OPINION:

It is the writer’s view that in today’s economic and social environment it is generally advisable to conclude a marriage out of community of property with the operation of the accrual system to ensure the separate administration of the spouses’ respective estates while securing that each party will receive a portion of the growth of the estates during the marriage if the marriage is ever dissolved.

While marriages in community of property are based on age old views that a marriage is a partnership between spouses, it is generally ill advised to conclude a marriage in community of property in today’s world as economic and social standings are constantly changing and can prejudice a joint estate far more easily than if the spouses had separate estates.

Similarly, given today’s economic and social environment and its every changing course, the only situations in which it would be advisable to conclude a marriage out of community of property without the operation of the accrual system would be if either the spouses to the marriage wish to remain completely separate and have no claims against one another, or if there are minor children from a previous marriage whose interests in a parent’s estate could be prejudice by the operation of the accrual system.
CONCLUSION:

In conclusion, there are various manners in which to conclude a marriage in South Africa and each manner has its advantages and disadvantages. While marriage is a path that couples must take together, the couple must also be aware of the consequences of that path and make an informed decision that will be to their greatest benefit.

 

 

Ian Mc Laren

Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens Attorneys September 1986. Right of Appearance High Court, October 1996.ExpertiseLitigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology.Committees/ TrustsLaw Society of South Africa Information Technology Committee. Trustee Verney College Educational TrustOtherTransvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.