Family Law

Marriage – The day of reckoning

By 24/02/2011 June 9th, 2021 No Comments

When considering marriage, one needs to consider what type of marital regime is best suited to each individual, as marriage has broad consequences in respect of the spouses and their property.

The three most common ways of getting married are:

  1. Married In Community of Property
  2. Married Out of Community of Property excluding the Accrual System
  3. Married Out of Community of Property including the Accrual System

Married in Community of Property

When a couple gets married, there is a rebuttable presumption that they are marrying in community of property. This means that unless there is a valid antenuptial contract or postnuptial contract, or separate legislation governing the marriage, the marriage will will be considered to be in community of property.

Getting married in community of property provides that the husband and wife will become tied co-owners in undivided and indivisible half shares of all the assets and liabilities that they will acquire during the marriage. At marriage, the spouses separate estates will become automatically merged into a joint estate for the duration of the marriage.

Married Out of Community of Property with the Exclusion of the Accrual System

If one wishes for complete separation of property, an alternative to getting married in community of property, is getting married out of community of property with the exclusion of the accrual system. The effect of this marital regime is that the parties remain in the same financial position as they were before the marriage. Each spouse will retain the estate he or she had before the marriage as well as everything he or she acquires during the marriage.

Married Out of Community of Property with the Inclusion of the Accrual System

It is becoming more common for people to get married out of community of property with the inclusion of the accrual system.

The accrual system is founded on the idea that at the dissolution of a marriage both spouses ought to share in the growth that their estates have shown during the marriage. Each spouse retains and controls his or her own estate, but upon dissolution of the marriage, the spouses share equally in the accrual or growth their estates have shown during their marriage.

Customary and Muslim Marriages

Traditional or Customary Marriages are common in South Africa, and “The Recognition of Customary Marriages Act, 120 of 1998,” was brought into effect in order assist in the regulations of customary marriages.

The Act provides that a couple entering into a monogamous customary marriage will be married in Community of Property and of Profit and Loss unless it is specifically excluded in an antenuptial contract, which regulates the matrimonial property system of their marriage.

The Act further stipulates that Customary Marriages must be registered within three months after the conclusion of the marriage, or within such period the Minister may from time to time prescribe by notice in the Gazette. However, if the marriage is not registered, other factors may be taken into consideration when determining the validity of the marriage.

Ian Mc Laren

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. Expertise Litigation, 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/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.