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Getting married in South Africa

Getting married in South Africa

When getting married it is imperative that one considers the law.  In South Africa there are three different matrimonial regimes one can choose from, namely:

  1. In community of property;
  2. Out of community of property; and
  3. Out of community of property with the application of the accrual system

In order for parties to make an informed decision, all three matrimonial regimes need to be considered.

In terms of the Matrimonial Property Act (Act 88 of 1984) (herein after referred to as “the Act”) a marriage conducted without an Antenuptial Agreement (herein after referred to as an “ANC”) is a marriage in community of property.

Being married in community of property means your estate now forms one with your spouse’s estate.  Thus two individual people who previously had two separate estates now have one communal estate and same is administered as such.  This in essence means that one spouse cannot for example bind the communal estate as surety or open a bank account or incur liabilities without the other party’s written consent.  A further burden on a communal estate is the tax implications – tax will be calculated on the combined income of the parties.  In the case of outstanding debt whether it accrued before or after date of marriage, Creditors will apply for the sequestration of the communal estate which may result in both parties being declared insolvent.

In the light of the aforegoing it is clear that having a communal estate is an administrative burden and can place both parties at great risk.  This however can be avoided by entering into an ANC before getting married.

Also remember when consulting your attorney for the drafting of your ANC, make sure that you understand how the accrual system works as one can solemnize your marriage on a pure out of community of property matrimonial regime in which case the accrual system specifically needs to be excluded, alternatively you can get married out of community of property with the application of the accrual system. 

In terms of the out of community of property matrimonial regime all assets and liabilities incurred before and after the marriage becomes the sole property of the acquiring spouse.  Each spouse owns and administers his or her own estate independently.

Should one decide to get married out of community of property with the application of the accrual system, the same principles will apply with one main advantage:  the growth accrued during the marriage is equalized between the parties at time of death of divorce.

This can be a very complicated calculation and the parties must understand what assets and liabilities will be included in the calculation of their estate’s growth at time of death or divorce and exactly how the formula works.

An ANC must be signed before date of marriage by both parties and notarised before two independent witnesses.

Therefore should you wish to solemnize your marriage out of community of property with or without the accrual system, make sure to consult with your trusted attorney for proper legal advice.

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