How to understand your Marital Regime in South Africa

By Zeenat Hoosen,

As a legal practitioner I find that most people don’t fully understand the marital regime which governs their marriage, and that there is an exceedingly increasing need to clarify the position  so that parties to a marriage understand the patrimonial consequences of their marriage.

In order to be married in terms of South African law, you have to conclude your marriage before a Department of Home Affairs accredited marriage officer, who will issue you with a marriage certificate issued by the Department of Home Affairs.

If so married, your marriage is automatically deemed to be a marriage in community of property – essentially your assets and that of your spouse are merged together, and any gains or losses are against a joint estate. Your spouse has an automatic right to anything you have prior to marriage and to that you acquire after marriage. You also automatically share in any liabilities and debts incurred by your spouse.

To avoid this eventuality, you would need to conclude an antenuptial contract PRIOR to concluding your civil marriage with the marriage officer. The antenuptial (“ante” meaning before) contract has the effect of rendering your marriage one out of community of property, where you and your spouse maintain separate and individual estates – in respect of both assets and liabilities.

There are two types of antenuptial contracts: with accrual and without accrual. Speak to your legal adviser for in-depth advice on the differences between the two to decide which best suits your situation and preference.

If you have not been married before a marriage officer, but have concluded a religious marriage or customary marriage, your marriage is accepted by law. An Islamic or Hindu marriage has the effect of you and your spouse maintaining individual estates in respect of assets and liabilities. You are not married in terms of civil law and you are not married in or out of community of property.

Customary marriages have the effect of being in community of property unless an antenuptial contract was executed prior to the customary marriage rituals.

Foreign marriages (marriages concluded in foreign countries) are governed by the regulations of the relevant country. Spouses can acquire assets in their own name but can only dispose of or burden assets with the assistance/consent of their spouse.

The attorneys at SLH Inc will be happy to assist you in navigating the implications of your marriage or in deciding which regime to choose to govern your impending marriage.

*About the author:  Zeenat Hoosen is a senior partner and  Head of Real Estate and Property at SLH Inc
Contact SLH Inc on 011 728 6666. 
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