Getting Married in South Africa – Prenups, Law, etc.

Deciding to get married, is the most important decision in your life as it affects every aspect of your life, the life of your future spouse, third parties and the community in general. On that joyous day a “consortium omnis vitae” is established between the parties which literally means “partnership in life”.

Determining the appropriate matrimonial property regime to set-up that partnership, depends on every couple and their unique set of circumstances and needs. It’s like shopping for wedding shoes – whilst there are endless options, some brides choose sneakers whilst other brides cease their big days with the highest, thinnest, and most colourful heels they could find. Why? Because we are all different and have different backgrounds, personalities, preferences, opinions, and perspectives.

While the focus is often on love and romance, it is essential to recognize that marriage also involves important legal and financial aspects that warrant careful consideration. One crucial tool that can help couples navigate these matters is an antenuptial or postnuptial contract. An antenuptial contract, is a legal document that establishes the framework for the division of assets and liabilities in the event of divorce or the death of a spouse.

This article delves into the significance of antenuptial contracts, shedding light on how they can protect individuals' interests, foster financial stability, and provide a sense of security within the sacred institution of marriage.

South African Law on Marriages

☑️     The adoption of the Constitution of the Republic of South Africa in 1994 marked a significant milestone in celebrating diversity and inclusivity. The law of South Africa acknowledges and embraces individuals from all walks of life.

In the realm of marriages, the Constitution laid the groundwork for the enactment of crucial legislation that recognized the rights of various communities.

☑️     One such legislation is the Civil Union Act, No. 17 of 2006, which played a pivotal role in legalizing same-sex marriages. This progressive step ensured that love and commitment are not limited by gender or sexual orientation. By providing legal recognition and protection to same-sex couples, South Africa demonstrated its commitment to equality and non-discrimination.

☑️     In addition to same-sex marriages, the Constitution also paved the way for the Recognition of Customary Marriages Act, No. 120 of 1998. This legislation acknowledged the importance of customary marriages within South African society and sought to provide legal recognition and protection to couples who choose to enter into such unions.

By recognizing and regulating customary marriages, the law acknowledged and respected the cultural traditions and practices of different communities.

☑️     While these acts expanded the definition of "marriage" and promoted inclusivity in South Africa, it is essential to consider the financial implications that arise within the context of marriage. This is where the Matrimonial Property Act, No. 88 of 1984, comes into play.

Irrespective of the type of marriage, whether it is a marriage conducted under the Marriage Act, the Civil Union Act, No. 17 of 2006 or the Recognition of Customary Marriages Act, No. 120 of 1998 the Matrimonial Property Act, No. 88 of 1984 governs the patrimonial and financial consequences of these marriages.

☑️     The Matrimonial Property Act, No. 88 of 1984 provides a framework for determining how assets and liabilities are to be shared between spouses during the course of the marriage and in the event of divorce or death. It establishes rules regarding the ownership, management, and division of property, addressing issues such as communal property, accrual systems, and spousal maintenance.

By regulating the financial aspects of marriages, the Matrimonial Property Act, No. 88 of 1984 ensures fairness and clarity, and protects the rights and interests of both parties involved.

☑️     South African law, through the adoption of the Constitution and subsequent legislation, has made significant strides in embracing diversity and inclusivity in the realm of marriages.

The Civil Union Act, No. 17 of 2006 and the Recognition of Customary Marriages Act, No. 120 of 1998 provide legal recognition and protection to same-sex and customary marriages, respectively. At the same time, the Matrimonial Property Act, No. 88 of 1984 ensures that the financial aspects of all marriages are regulated, promoting fairness, clarity, and the protection of spousal rights.

Together, these laws contribute to a more inclusive and equitable South Africa, where all individuals are afforded equal rights and protection within the institution of marriage.

Matrimonial Property Regimes in South Africa

There are only three matrimonial property regimes available in South African, namely:

✅         marriage in community of property, being the default matrimonial property                        regime in South Africa;

✅         marriage out of community of property, with the exclusion of the accrual system; and

✅         marriage out of community of property with the inclusion of the accrual system.

Don't Let Love Blind the Importance of an Antenuptial Contract

💍As the excitement of your engagement settles and the wedding preparations kick into full swing, it's easy for thoughts of "marriage options" and "marriage property regimes" to take a backseat. After all, your mind is occupied with finding the perfect wedding venue, selecting attire, indulging in food tastings, and marvelling at beautiful flower arrangements.

💍While it may seem like a buzzkill, it's crucial not to overlook the importance of choosing the appropriate marriage property regime before the wedding day. In fact, it's one of the most significant decisions you'll make leading up to your wedding day.

💍This decision holds immense legal weight, as it is the only recognized document that can safeguard you and your spouse in the face of financial hardships such as sequestration, liquidation, or business rescue, as well as in the unfortunate events of death or divorce.

💍While no one plans for these circumstances, life has a way of throwing unexpected curveballs without warning. However, having the right marriage property regime in place can provide a safety net and mitigate potential hardships.

💍The options available include the conclusion of an antenuptial agreement, the applicability of the accrual system or getting married in community of property.

💍Choosing the appropriate marriage property regime is akin to finding the perfect shoe that fits comfortably. Just as you try on various shoes to find the ideal fit, it's essential to explore all the available options and make an informed decision. When done correctly, you can confidently walk down the aisle towards your knight in shining armour, knowing that you've taken the necessary steps to protect your future together.

💍By considering the implications of different marriage property regimes and making a deliberate choice, you can pave the way for a secure and stable future. Whether you opt for an antenuptial contract, which allows you to customize your property rights and obligations, choose the accrual system, which promotes fair asset division, or decide to marry in community of property, understanding the significance of these decisions ensures that you're well-prepared for any unexpected challenges that may arise.

💍So, amidst the excitement of wedding planning, take a moment to pause and prioritize the selection of an appropriate marriage property regime. By doing so, you'll not only embark on your journey with your beloved but also ride off into the sunset with the confidence that you've taken the necessary steps to protect your interests and secure a stable future together.

Historical background to marriages in South Africa:

Since 1994, the legal landscape in South Africa has undergone significant transformations, particularly within the realm of family law. The establishment of the democratic order and the adoption of the Constitution of South Africa in 1996 paved the way for the recognition of same-sex marriages and customary marriages, marking a progressive shift in societal acceptance and legal protection.

Prior to 1996, the only legally recognized marriage in South Africa was the "civil marriage" as defined by the Marriages Act, No. 25 of 1961, which stated that marriage was a voluntary union between one man and one woman, excluding all others. However, on 15 November 2000, the Recognition of Customary Marriages Act, No. 120 of 1998 was enacted, placing customary marriages on equal footing with traditional civil marriages. Subsequently, on 30 November 2006, the Civil Union Act, No. 17 of 2006 extended the scope of "civil marriages" to include same-sex marriages or civil partnerships.

Under Section 9 of the Constitution of South Africa, 1994, the current family law framework recognizes different types of marriages, each with its own legal benefits and protections. These include "civil marriages," encompassing both traditional marriages under the Marriages Act, No. 25 of 1961, and same-sex marriages or civil partnerships under the Civil Union Act, No. 17 of 2006. Additionally, "customary marriages" are recognized under the Recognition of Customary Marriages Act, No. 120 of 1998.

However, other "traditional and/or religious marriages" are only recognized in South Africa if they are accompanied by the simultaneous conclusion of a civil marriage, either under the Marriages Act, No. 25 of 1961 or the Civil Union Act, No. 17 of 2006. Furthermore, the conclusion of a traditional and/or religious marriage must align with the provisions set out in the Constitution of South Africa, 1996. For instance, Islamic marriages are only recognized if they adhere to both the principles of the Qur'an and civil law. This requirement arises from the need to uphold women's rights to equality as mandated by Section 9 of the Constitution, which can sometimes clash with certain traditional and religious marriage practices. Many other religions in South Africa face similar challenges in reconciling their practices with constitutional principles.

While significant progress has been made in South Africa towards equality and inclusivity, there is still much work to be done. True equality for all individuals, including those in traditional and religious marriages, domestic partnerships, and individuals seeking recognition under the Alternation of Sex Description and Sex Status Act, No. 49 of 2003. The country continues to navigate the complexities of a rapidly changing society and strives to address these issues to ensure equal rights and protections for all.

Despite the challenges, South Africa has demonstrated commendable strides in dismantling oppressive marital practices, eliminating fault-based dissolution of marriages, prohibiting inter-cultural marriage restrictions, and recognizing the validity of same-sex marriages and customary marriages. These advancements reflect the country's commitment to fostering a more inclusive and equitable society that values the diversity and rights of its citizens.

Requirements for a Legal Marriage

To conclude any valid marriage is South Africa, be it a ‘civil marriage’ or a ‘customary marriage’, the following requirements is necessary:

✅      Legally competent

Firstly, both parties must be legally competent to conclude a marriage. Legal competency refers to the parties’ ages, mental capacity, marriage status and absence of legal bans to their marriage i.e., whether there is any relation to each other, either by way of blood or other relatives. All of these are discussed here:

💍 Majority:

At the time of the conclusion of marriage, both parties need to be majors, alternatively minor children in terms of Section 26 of the Marriage Act, No. 25 of 1961 with the required written consent from the Minister of Home Affairs and their parents and/or guardians. In terms of Section 17 of the Children’s Act, No. 38 of 2005, a child attains majority at the age of 18 years old.

If a boy between the ages of 14 and 18 years intend to get married, he is required to obtain the written consent from the Minister of Home Affairs and his parents and/or guardians.

If a girl between the ages of 15 and 18 years intent to get married, she is only required to obtain the written consent from the Minister of Home Affairs.

If the required written consent is refused without a valid reason and the minor child’s interests is being prejudiced with the refusal, the Court may, in terms of Section 25(4) of the Marriage Act, No. 25 of 1961, substitute the parent and/or guardian with the High Court, as the upper guardian of children, and give the necessary consent.

If a minor gets married without the required consent, the Court may, on application by either the minor or his/her parents or guardians, dissolve the marriage in terms of Section 24A of the Marriage Act, No. 25 of 1961, provided that it is in the best interest of the minor child.

Such an application must be brought before the minor child attains majority and within 6 weeks if the application is brought by a parent or guardian, or within 3 months if the application is brought by the minor. In those circumstances, the Court has a wide discretion, in terms of Section 24(1) of the Matrimonial Property Act, No. 88 of 1984, to make such order regarding the division of the matrimonial property of the parties as it may deem just.

If the marriage is not dissolved, the minor is deemed to be major and the conclusion of the marriage is valid.

💍 Marriage status:

All civil marriages in South Africa must be monogamous, meaning that a person is only allowed to be married to one person at a time in terms of the Marriage Act, No. 25 of 1961 and the Civil Union Act, No. 17 of 2006. If you were thus previously married and got divorced or were widowed, you need to submit a certified copy of the decree of divorce and/or the death certificate to the marriage officer before entering into the next marriage, failing which, you might face criminal charges of bigamy.

South Africa recognizes polygamous marriages to the extent that the parties conclude a customary marriage within the confines of the Recognition of Customary Marriages Act, No. 120 of 1998 and traditional African customs. Polygamy is disallowed in all other circumstances.

💍 Mental capacity:

Parties must be mentally capable to conclude a marriage. Mental capacity in the legal sphere refers to the person’s ability to understand and appreciate the consequences of their legal actions, to ultimately be able to consent thereto. In the context of marriage, the person(s) needs to be able to understand the legal act of marriage before they can consent thereto.

For example, if a person is declared to be mentally insane or is of such an age and development that they cannot understand the legal concept of marriage, they do not have the mental capacity to conclude a marriage and the marriage will then ultimately be declared null and void.

💍 Marriage Banns:

There cannot be any legal banns to the conclusion of a marriage.

If the parties are related to each other, either by way of blood or by way of his/her deceased or divorced spouse’s blood relatives, the parties are banned to conclude a marriage with each other.

If the parties are related by blood, either through a common parent or through a common ancestor and/or if one of them is related in the first degree to that common ancestor, the marriage is prohibited. For example, marriage is forbidden between brother and sister, uncle and niece, aunt and nephew, and it extends to great uncles and great aunts related in the first degree to the common ancestor.

Section 28 of the Marriage Act, No. 25 of 1961 sets out the lawful marriages between a person and relatives of his/her deceased or divorced spouse, i.e., a man may not marry the daughter or granddaughter, or mother or grandmother of his wife and that the woman may not marry the son or grandson or father or grandfather of her husband.

An interesting legal question arises when a child is adopted. The general principal is that the adopted child’s status before adoption, remains unaltered in this regard. The adopted child can thus enter into any marriage that he/she was allowed to before the adoption. The only exception to this general rule, is that the adopted child cannot conclude a marriage with the adopted parent(s).

✅      Consensus between the parties

There must be consensus between the parties to enter into a marriage i.e., the parties must consent to enter into the marriage. Consent to enter into the marriage must be given in the presence of two competent witnesses and a marriage officer.

If consensus is excluded by way of a misconception, misrepresentation and undue influence, the marriage is null and void.

✅      Competent Marriage Officer

The marriage needs to be solemnized by a competent marriage officer as set out in Section 2(1) of the Marriage Act, No. 25 of 1961 and Section 5 of the Civil Union Act, No. 17 of 2006, as follows:

💍 Section 2(1) of the Marriage Act, No. 25 of 1961:

“Every magistrate, every special justice of the peace and every Commissioner shall by virtue of his office and so long as he holds such office, be a marriage officer for the district or other area in respect of which he holds office”.

💍 Section 5 of the Civil Union Act, No. 17 of 2006:

• Any religious denomination or organisation may apply in writing to the Minister to be designated as a religious organisation that may solemnise marriages in terms of this Act.
• The Minister may designate such a religious denomination or organisation as a religious institution that may solemnise marriages under this Act, and must, from time to time, publish particulars of all religious institutions so designated in the Gazette.
• The Minister may, on request of any designated religious institution referred to in subsection (2), revoke the designation under that subsection and must publish such revocation in the Gazette.
• The Minister and any officer in the public service authorised thereto by him or her may designate, upon receiving a written request from any minister of religion or any person holding a responsible position in any designated religious institution to be, as long as he or she is such a minister or occupies such position, a marriage officer for the purpose of solemnising marriages, in accordance with this Act, and according to the rites of that religion.
• Every designation of a person as a marriage officer under subsection (4) shall be by written instrument and the date as from which it shall have effect and any limitation to which it is subject shall be specified in such instrument.
• The Minister and any officer in the public service authorised thereto by him or her may, upon receiving a written request from a person designated as a marriage officer under subsection (4), revoke, in writing, the designation of such person as a marriage officer for purposes of solemnising marriages under this Act.

✅      Legal Documents

Before entering the marriage, the parties must provide certified copies of their Identity Documents to the marriage officer together with an affidavit under oath, confirming that they consent to entering the marriage and there are no banns to their marriage, either by way of relation and/or legally.

In the event of a minor, the required written consent from the Minister of Home Affairs, his/her legal guardian and/or parent and/or the High Court also needs to be included in this affidavit.

✅      Solemnization of Marriage

In terms of Section 29(1) of the Marriage Act, No. 25 of 1961, the marriage may be solemnized on any day of the week between 08:00 and 16:00.

The marriage must be solemnized by a marriage officer in the presence of at least two competent witnesses in terms of Section 29(2) of the Marriage Act, No. 25 of 1961, in a church or other building used for religious service, or in a public office or private dwelling-house, with open doors and in the presence of the parties themselves and at least two competent witnesses.

The underlying principle of this prescription is to prevent clandestine marriages and that anyone can raise an objection to the proposed marriage.

The marriage must furthermore be solemnized in the form as set out in Section 30(1) of the Marriage Act, No. 25 of 1961 and Section 11 of the Civil Union Act, No. 17 of 2006, i.e.:

"Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?", and thereupon the parties shall give each other the right hand and the said marriage officer shall declare the marriage solemnized in the following words: "I declare that A.B. and C.D. here present have been lawfully married."

✅      Signing of Marriage Register

In terms of Section 29A of the Marriage Act, No. 25 of 1961, the parties, the marriage officer and two competent witnesses must sign the marriage register immediately after the solemnization of the marriage. The marriage officer will then register the marriage.

Choosing a Marriage Property Regime

Given the aforementioned considerations, it is important to examine the various types of marriage property regimes.

Regardless of the specific type of marriage, whether it falls under "civil marriages" according to the Marriage Act, No. 25 of 1961 or the Civil Union Act, No. 17 of 2006, or "customary marriages" as defined by the Recognition of Customary Marriages Act, No. 120 of 1998, the legal implications, including the marriage property regimes, are applicable to all marriages in South Africa.

There are three types of marriage contracts or matrimonial regimes in South Africa.

These regimes are as follows:

1. Marriage in community of property;

2. Marriage out of community of property; and

3. Marriage out of community of property without the inclusion of the accrual system.

These marriage property regimes play a crucial role in determining the distribution of assets and debts in the event of divorce or death and/or creditors’ claims against the parties’ estate in the event of sequestration, liquidation or debt collections.

The chosen matrimonial property regime carries legal consequences that come into effect upon the dissolution of the marriage, whether through divorce or death, as well as in times of financial hardship such as sequestration, liquidation, or debt collection.

In the case of divorce, the parties involved have the opportunity to reach a settlement agreement regarding the financial implications of the divorce, irrespective of the applicable matrimonial property regime. This principle, known as the "clean break principle," aims to facilitate a swift separation between the parties, minimizing future contact between them.

The South African courts encourage parties to reach an amicable settlement agreement rather than undergoing a lengthy and costly legal process through an opposed divorce trial. The preference is for the parties to resolve their differences and agree on the division of their assets in a mutually acceptable manner. However, if the parties are unable to reach a settlement agreement regarding the distribution of their estate, they are left with no alternative but to proceed to trial, where the court will make a final decision on the division of their assets.

Marriage in community of property: “What is yours, is mine”

This is the primary and default matrimonial property regime in South Africa.

By law, community of property occurs the moment of marriage during which the parties’ separate estates are merged into a single joint and communal estate.

If the parties thus fail to conclude and register a notarized antenuptial contract and/or postnuptial contract within the required period, the parties automatically enter a marriage “in community of property” and the same will be registered as such in the Deeds Office.

The spouses become “bound co-owners” of the joint estate, each with an undivided and indivisible half-share in the joint estate, meaning that:

💍 each spouse will automatically own a 50% share in the joint estate; and

💍 neither spouse may alienate their respective 50% share in the joint estate during the subsistence of the marriage relationship.

As a general rule, all assets, debts and/or liabilities acquired by the parties prior to and during marriage thus falls within a joint estate. For example, if one spouse enters the marriage with a lot of debt, that debt will automatically form part of the joint estate, and both parties will be liable for the payment thereof.

In the event of death or divorce, the joint estate is calculated and equally divided between the parties. Such a marriage may be cumbersome to a spouse who is financially frugal when getting married to a spouse who is financially carefree.

Considering the aforementioned, you may be curious as to why someone would consciously opt for this specific matrimonial property regime. The benefit of a marriage in community of property lies in the fact that each partner shares in both the successes and challenges of the other. While this means sharing in your spouse's financial difficulties, it also entails sharing in the gains and growth of their estate without exerting personal effort. Consequently, if you have a prospective spouse or partner with an impressive asset portfolio or who holds a prominent position in business, this arrangement becomes considerably more appealing.

There are also other reasons why you may choose community of property, i.e., it encourages a relationship of equality between the parties and can be a symbol of absolute devotion and trust in each other.

Exclusions from joint estate:

Certain items can however be excluded from the joint estate and become the sole and private property of one spouse, namely:

💍 Any testamentary bequests or donations by a third party, provided there is an explicit provision to exclude it from the joint estate. Any replacement asset acquired in exchange for the bequest or donation is also automatically excluded from the joint estate. In cases where the gift is in the form of money and subsequently sold, any items purchased with the proceeds will be considered the sole property of the receiving spouse and excluded from the joint estate. However, any interest earned on money or income derived from separately owned property by one partner will generally be considered part of the joint estate, unless it has also been specifically excluded.

Plot twist: in 2003, the Supreme Court of Appeal in Du Plessis v Pienaar NO and Others 2003 (1) SA 671 (SCA) decided that the testamentary exclusion of property from community of property only applies inter-parties i.e., between spouses, and not against creditors and/or future creditors.

For example, suppose your grandfather leaves you a property in his will, expressly excluding it from the community of property. In the event of divorce or death, this property would be classified as part of your separate estate. However, it is essential to understand that creditors retain the right to enforce claims against the property for repayment of debts related to the joint estateEngagement and wedding gifts between parties, for example the engagement ring and/or wedding band;

💍 Property in which a spouse holds a limited or inalienable interest, such as a usufruct or a fideicommissum;

💍 Costs against the other in matrimonial proceedings. For example, if a wife’s divorce action against her husband has been dismissed with costs, those costs must be paid out of the unsuccessful spouse’s separate estate, if there is one, or out of his or her half share of the joint estate. This money then becomes the separate property of the other spouse.

💍 Delictual damages from third parties for non-patrimonial loss as provided for by section 18(a) of the Matrimonial Property Act, No. 88 of 1984. For example, if one party is injured in an accident and received compensation from the Road Accident Fund;

💍 Delictual damages for personal injury inflicted by the other spouse as provided for by section 18(b) of the Matrimonial Property Act, No. 88 of 1984.

Capacity to act with the joint estate:

As previously stated, spouses in a marriage in community of property are co-owners of the joint estate, each with the right and capacity to manage the joint estate and to perform juristic and/or legal acts on behalf of the joint estate, without the knowledge and/or consent of the other spouse. This originates from the Matrimonial Property Act, No. 88 of 1984 that abolished the formal “marital power” and expressly awarded equal powers to spouses married in community of property in accordance with Section 14 of the Matrimonial Property Act, No. 88 of 1984.

Naturally there are exceptions and/or restrictions to this rule. In terms of Sections 15(2), (3) and (7) and 17 of the Matrimonial Property Act, No. 88 of 1984, a spouse in a marriage in community of property are restricted to perform certain juristic and/or legal acts without the consent of the other spouse, either informally, written or attested by witnesses. These exceptions protect the parties in transactions that may impair the joint estate and the parties’ shares.

There are various repercussions if the required consent is not obtained which depends on the specific set of circumstances, i.e., if the juristic or legal act is null and void, the “innocent” spouse has a right to recourse against the “guilty” spouse when the marriage is dissolved etc. In such an event, legal assistance should be obtained to ensure that your rights are fully protected.

Protection against delinquent spouses:

In light of the above, it should be painfully evident that spouses married in terms of marriage in community of property can easily and seriously prejudice each other’s financial interests by negligent, reckless and/or intentional behaviour. To this end, the Matrimonial Property Act, No. 88 of 1984 offers some assistance, namely:

1. When a spouse unlawfully enters a transaction without the required consent of the other spouse or when the joint estate incurs a liability or debt on behalf of a spouse’s separate estate, the “innocent”spouse has the right to recourse in accordance with Sections 15(9)(b) and 19, when the marriage is dissolved;

2. When a spouse unreasonably withholds consent or when the required consent could not be obtained, a competent court may, in accordance with Section 16(1), give leave to a spouse to enter into a juristic or legal transactions without the required consent of the other spouse;

3. A competent court may, in accordance with Section 16(2), suspend a spouse’s powers and/or rights for a definite of indefinite period;

4. If the interest of a spouse is being or will probably be seriously prejudiced by the conduct or proposed conduct of the other spouse, a competent court may, in accordance with Section 20, order the immediate division of the joint estate and replace community of property with another matrimonial property regime;

Apart from the above, spouses also have common law remedies to their avail for protection i.e., a prohibitory interdict to refrain the spouse to enter a juristic or legal act (i.e., to alienate property), or a restitutionary interdict to restore possession when the property has already been alienated.

Dissolution of the joint estate:

Death:

In the unfortunate event of the death of one or both spouses, the separate estate of the deceased will be inherited in terms of the normal rules of succession and the joint estate, which comprises the combined assets, debts, and liabilities of the spouses, is managed through the provisions outlined in the Administration of Deceased Estates Act, No. 66 of 1965. An executor, appointed in accordance with the Act, will oversee the administration of the joint estate and ensure that its assets and liabilities are properly accounted for.

In the process of administering the joint estate, all assets, debts, and liabilities are evaluated and calculated. The net value of the estate is then divided equally between the spouses, with each receiving a half share. The surviving spouse is entitled to receive their half share of the joint estate, while the deceased spouse's half share is subject to the rules of succession, similar to the distribution of the separate estate.

Divorce:

In the unfortunate event of a divorce, the Court will appoint a liquidator who is responsible for calculating and dividing the joint estate. However, it is generally recommended that parties involved in a divorce attempt to reach a settlement agreement regarding the division of the joint estate, as opposed to engaging in a protracted and expensive contested divorce.

South African law furthermore recognizes the importance of the "clean break principle" in cases where the couple is married in community of property. This principle ensures that the non-member spouse, who is not the holder of a pension fund, has the right, or at least the entitlement, to receive an immediate payment or transfer of a portion of the other spouse's pension interest upon divorce. This provision aims to provide financial security and fairness to the non-member spouse, acknowledging their contribution to the marriage and their entitlement to a share of the joint assets.

Pension Interests:

According to Section 7(a) of the Divorce Act, No. 7 of 1989, the pension interests of both spouses are considered part of their assets and are included in the joint estate. When a divorce decree assigns a portion of the pension interest to the non-member spouse, it becomes the entitlement of the member spouse on the date of divorce, as outlined in Section 37D(4) of the Pension Fund Act, No. 24 of 1956

It is essential to ensure that the decree of divorce accurately reflects the pension interest, following the rules specified by the relevant pension fund. Failure to do so correctly may result in the pension fund refusing to make the pay-out, necessitating an amendment to the decree of divorce.

As per Section 37D(4)(b)(i) of the Pension Fund Act, No. 24 of 1956, within 45 days of receiving the decree of divorce from the non-member spouse, the pension fund is obligated to request the non-member spouse to choose whether the deducted amount should be paid directly to them or transferred to a pension fund on their behalf.

The non-member spouse must then make their election within 120 days, as per Section 37D(4)(b)(ii) of the Pension Fund Act, No. 24 of 1956. Failure to do so will result in the pension fund paying the pension interest directly to the non-member spouse under Section 37D(4)(b)(iv) of the Pension Fund Act, No. 24 of 1956, and/or retaining the amount until payment details are provided. Once the non-member spouse has made their election, the pay-out must be executed within 60 days, as per Section 37D(4)(b)(iii) of the Pension Fund Act, No. 24 of 1956.

In conclusion, marriages in community of property have significant legal and financial implications for couples in South Africa. While this marital regime promotes the concept of sharing assets and liabilities equally between spouses, it also exposes both parties to potential risks and complexities in the event of a divorce or financial dispute.

To navigate the complexities of marriages in community of property effectively, it is recommended that couples seek professional legal and financial advice before and during their marriage. Understanding their rights, obligations, and the potential consequences of this marital regime can help couples make informed decisions and protect their financial interests.

Ultimately, while marriages in community of property offer a sense of unity and shared responsibility, couples should be aware of the legal implications and potential challenges that may arise. By proactively managing their financial affairs, communicating openly, and seeking professional guidance, couples can navigate the complexities of this marital regime and build a strong foundation for their shared future.

Marriage out of community of property:

The patrimonial consequences of a marriage out of community of property, whether with or without the inclusion of the accrual system, are relatively straightforward. In such marriages, the parties' ability to manage their separate estates remains unaffected, preserving their individual autonomy. Each spouse retains full discretion to handle their personal property as they see fit, free from interference. Furthermore, in the event that one partner faces insolvency, the other's assets are shielded from creditors, providing a layer of protection.

However, when a marriage out of community of property includes the accrual system, disputes may arise concerning the division of assets. It is important to emphasize that, in accordance with South African law, it is preferable for parties to reach a settlement agreement rather than rigidly enforcing the terms and conditions outlined in the antenuptial contract. This preference arises from the recognition that personal and financial circumstances can significantly change since the time the antenuptial agreement was initially established. By opting for a settlement agreement, the parties can negotiate a fair and equitable division of the estate that takes into account their current circumstances.

Marriage out of community of property, with the EXCLUSION of the Accrual System:

When spouses enter and register a valid antenuptial contract in accordance with the Deeds Registries Act, No. 47 of 1937, the spouses are married out of community of property.

The content of an antenuptial agreement:

Even though an antenuptial contract fundamentally regulates the patrimonial consequences of the marriage, the parties may incorporate almost any further terms and conditions in their antenuptial contract as they deem fit, as long as it is legal, moral and possible. This flexibility empowers parties to personalize their antenuptial contracts according to their specific and unique requirements. For instance, one spouse may utilize the antenuptial agreement to establish a trust or transfer property to the other spouse or include a pactum successorium a contract of inheritance, donations, and gifts, among other aspects. Additionally, parties may choose to include a marriage settlement, which involves gifts made or promised by one spouse to the other in anticipation of the marriage. Examples of such gifts may include a house, an insurance policy or a motor vehicle. These promises may also be subject to conditions. For instance, a husband may pledge to acquire specific insurance policies once children are born.

It is however important to note that certain limitations apply. Parties cannot include conditions that are unlawful or impossible, nor can they exclude essential aspects such as the marriage consortium or the reciprocal duty of maintenance between spouses.

By incorporating such additional provisions into the antenuptial contract, couples can establish a framework that aligns with their specific wishes and circumstances. This level of customization allows for the creation of a legal document that not only safeguards the interests and intentions of both parties but also accounts for potential future events and changes in their lives.

General principles:

As a general rule, the spouses retain their individual estates prior to and after marriage and is fully competent to individually manage and act in respect of their own estates.

The spouses are furthermore solely liable for any debt and/or liability incurred by them individually. The only exception to this rule is contained in Section 23(5) of the Deeds Registries Act, No. 47 of 1937, wherein both spouses are held liable against third parties, jointly and severally, for all debts and/or liabilities incurred by either party in respect of household necessities for the joint household.

Requirement for valid antenuptial contract:

The requirements for a valid antenuptial contract are contained in Section 87 of the Deeds Registries Act, No. 47 of 1937, as follows:

1. an antenuptial contract needs to be attested by a notary public; and

2. an antenuptial contract needs to be registered in the Deeds Registry within three months after the date of its execution in the Republic of South Africa, as an antenuptial contract. The parties may cancel or alter the antenuptial contract any time before they marry, but thereafter its terms may be changed only by way of an order of the High Court.

Postnuptial contract:

If the parties intended to finalize an antenuptial agreement prior to marriage and agreed to the terms and conditions of the same, but fail and/or neglect to conclude and register the antenuptial agreement within the required three months, the parties may apply to the High Court, in terms of Section 88 of the Deeds Registries Act, No. 47 of 1937, for leave to register the notarial contract . This is known as a “postnuptial contract”.

A postnuptial contract has the same effect as an antenuptial contract, the only difference being that it was entered and registered after marriage.

Marriage out of community of property with the INCLUSION of the Accrual System.

Section 2 of the Matrimonial Property Act, No. 88 of 1984 provides that every marriage out of community of property will be subject to the accrual system, unless it is expressly excluded it in their antenuptial contract.

The underlying principle and/or idea of the accrual system is that the growth of a spouse’s estate during the subsistence of the marriage relationship, are due to both spouses’ contributions, either directly or indirectly.

For example, if you have children and decide that your wife will stay at home to take care of the children and the household, whilst the husband has a career to support the family financially, the husband’s estate will naturally grow whilst the wife’s estate stagnate. If the wife needn’t stay at home at take care of the children, she would also be able to earn an income to grow her estate and the family would furthermore be required to appoint a nanny, a domestic servant etc.

What is Accrual?

Accrual is the amount which the spouses’ separate estates has increased in value from the commencement of the marriage to its dissolution. This is also known as the estates’ growth.

How does Accrual work?

At the dissolution of the marriage, either by way of death of divorce, the accrual or growth of the spouses’ estates is calculated. In terms of Section 4(2) of the Matrimonial Property Act, No. 88 of 1984, the accrual of the estate of a deceased spouse is determined before effect is given to any testamentary disposition, donation mortis causa or succession out of that estate in terms of the law of intestate success.

Section 3 of the Matrimonial Property Act, No. 88 of 1984, determines that the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, has a claim against the other spouse or his estate, for an amount equal to half of the difference between the accrual of the respective estates of the spouses.

Assets excluded from Accrual:

In terms of the Matrimonial Property Act, No. 88 of 1984, there are certain assets that are excluded from the accrual, namely:

1. In terms of Section 4(1)(b)(i) of the Matrimonial Property Act, No. 88 of 1984, any non-patrimonial damages received by a spouse during the marriage;
2. In terms of Section 4(1)(b)(ii) of the Matrimonial Property Act, any asset which has been excluded from the accrual system in terms of the antenuptial contract of the spouses, as well as its proceeds and assets which replace the excluded assets or are acquired with its proceeds;

3. In terms of Section 5(1) of the Matrimonial Property Act, No. 88 of 1984, any inheritance, legacy or donation which a spouse receives from a third party, its proceeds and assets which replace the excluded assets or are acquired with its proceeds, unless the spouse includes the same in the antenuptial agreement or if the testator or donor stipulates the inclusion.

4. In terms of Section 5(1) of the Matrimonial Property Act, No. 88 of 1984, donations between spouses are excluded from the accrual. It is presumed that proceeds and replacements assets are excluded only to the value of the donation.

The option to exclude specific assets or liabilities from the accrual system upholds the principle of personal autonomy and the right to independently handle financial matters within the confines of marriage. This acknowledgment recognizes that each individual may have unique financial objectives, responsibilities, or existing arrangements that deserve consideration and preservation.

By granting this ability, couples are empowered to customize their financial arrangements according to their distinct requirements, preferences, and situations. This flexibility provides a valuable mechanism for safeguarding their personal assets and liabilities, fostering transparency, equity, and coherence in the financial dimension of their partnership.

Calculation of the Accrual – A Practical Example:

Mr. Schoeman and Mrs. Schoeman and were married in December 2015 and decided to divorce in September 2022, whereafter a divorce summons was instituted in October 2022.

In terms of the antenuptial contract, Mrs. Schoeman had a commencement value of R 1, 500, 000.00 and Mr. Schoeman had a commencement value of nil rands. 

At the date of divorce, Mrs. Schoeman’s estate was valued at R 3, 000, 000.00 and Mr. Schoeman’s estate was valued at R 250, 000.00.

Step 1: Obtain the commencement net values of spouse’s estates:

In terms of Section 6(1) of the Matrimonial Property Act, No. 88 of 1984, the spouses can either:

1. declare their commencement values in the antenuptial contract; or
2. declare the values thereof within 6 months after the marriage is concluded. The declaration needs to be contained in a written statement, signed by both parties, attested by a notary public and filed in the protocol of the notary before whom the antenuptial contract was executed. A declaration to this effect serves as prima facie proof of the parties’ net commencement values in respect of third parties and as conclusive proof of the net commencement values inter parties i.e., between the parties.

If the parties however fail and/or neglect to include their net commencement values  n the antenuptial contract and/or to conclude a separate statement in terms of Section 6(1) of the Matrimonial Property Act, No. 88 of 1984, there is a rebuttable presumption in terms of Section 6(4) of the Matrimonial Property Act, No. 88 of 1984, that the net commencement values are zero. The rebuttable presumption extends to circumstances in which a spouse(s) liabilities exceed his assets at commencement.

Step 2: Adjust the commencement net values in accordance with CPI and inflation:

To determine the growth of the parties’ estates, the commencement values in the antenuptial contract need to be adjusted in accordance with the CPI and inflation to determine their ‘real’ values in October 2022.

The following formula is used to determine the adjusted commencement values:

To find the historical CPI values, visit www.statssa.gov.za and click on the Historical CPI tab to download the PDF.

Based on the aforesaid formula and the CPI headline values, the adjusted commencement value is R 2, 161, 9433.32 and calculated as follows:

Step 3: Do the accrual calculation:

To calculate accrual, you would now follow these steps:

Mrs. Schoeman:

1. R 3, 000, 000.00 (the end value) – R 500, 000.00 (liabilities and debt deductions) = R 2, 500, 000.00
2. R 2, 500, 000.00 – R 2, 161, 9433.32 (adjusted commencement value ) = R 338, 056.68.

Mrs. Schoeman’s accrual is this R 338, 056.68.

Mr. Schoeman:

1. R 250, 000.00 (the end value) – R 100, 000.00 (liabilities and debt deductions) = R 150, 000.00

2. R 150,000.00 – R nil (adjusted commencement value) = R 150, 000.00.

Mrs. Schoeman’s accrual is this R 150, 000.00

Step 4: Do the division of the accrual calculation:

In light of the above, Mr. Schoeman’s estate has a smaller accrual than Mrs. Schoeman’s estate. In terms of Section 3 of the Matrimonial Property Act, 88 of 1984 Mr. Schoeman is thus entitled to half of the difference between the accrual of the Mr. and Mrs. Schoemans’ estate.

To calculate the division, you would now follow these steps:

1. Deduct Mr. Schoeman’s estate accrual from Mrs. Schoeman’s estate accrual:

R 338, 056.68 – R 150, 000.00 = R 188, 056.68

2. Divide R 188, 056.68 in half:

R 188, 056.68 / 2 = R 94, 028.34

Mr. Schoeman thus has an accrual claim against Mrs. Schoeman is the amount of R 94, 028.34.

PS: If you add Mr. Schoeman’s accrual (R 150, 000.00) to the claim amount (R 94, 028.34), you will get a total growth of R 244 028.34, the exact amount of accrual Mrs. Schoeman will have after the claims deduction (R 338, 056.68 – 94, 028.34). Thus, Mr. and Mrs. Schoemans’ estates will have grown by the same amount since the inception of their marriage.

Division of accrual sharing:

Spouses in a marriage out community of property that are subject to the accrual can easily and seriously prejudice each other’s interests by negligent, reckless and/or intentional behaviour. To this end, the Matrimonial Property Act, No. 88 of 1984 offers some assistance.

If the interest of a spouse is being or will probably be seriously prejudiced by the conduct or proposed conduct of the other spouse, a competent court may, in accordance with Section 8, order the immediate division of the accrual and replace accrual with another matrimonial property regime, in terms of which accrual sharing as well as community of property and community of profit and loss are excluded.

Case Study:

Suppose you and your spouse entered into a marriage out of community of property with the accrual system. Unfortunately, due to the irreparable breakdown of your marriage, a divorce becomes inevitable. During the divorce proceedings, you take active measures to diminish the accrual of your estate. Specifically, you make a donation of R 2,205,362 to a newly established trust, with your brother as the sole trustee and your minor daughter as the sole beneficiary. Additionally, you transfer R3,377,481 to your father's bank account, claiming it as repayment for a loan allegedly taken from him 25 years ago.

These are the essential details of the case PAF v SCF (788/2020) [2022] ZASCA 101 (PAF v SCF), summarized briefly. The matter was presented before the Supreme Court of Appeal (SCA) on 22 June 2022, revolving around a failed estate planning scenario. The wife of the appellant (the respondent) became aware of these transactions, which appeared to be an attempt by the appellant to deprive her of her accrual claim. Consequently, the respondent filed a counterclaim, seeking to include the value of these questionable transactions in the calculation of the accrual. The High Court determined that the two transactions were carried out with a fraudulent intention to undermine the respondent's accrual claim. As a result, the High Court ordered that the value of these transactions should be regarded as part of the appellant's assets for the purpose of calculating the accrual.

The Supreme Court of Appeal had to evaluate the validity of the High Court's decision to include the value of the donation made to the trust as part of the appellant's assets in the accrual calculation.