Legal Articles

It is not uncommon that at the behest of a moment of deep romance, parties in romantic relationships find themselves making decisions which have far reaching implications pertaining to their individual estates, when a marriage is eventually concluded.

Civil Marriage - Marital Regimes in South Africa

Seeking expert legal advice before entering into a marriage is important in so many respects. Choices of the preferred matrimonial property regime, the status of children from prior relationships/marriages, assets and liabilities, are all pertinent issues which must be discussed and agreed upon before the conclusion of a marriage. 

The law in South Africa makes a rebuttable presumption that civil marriages are in community of property, unless the contrary is proven. Therefore, the preferred matrimonial property system should be clarified without which it will be determined by legal presumptions and inferences from facts of each case.

Matrimonial Property Act 88 of 1984

Before the introduction of the Matrimonial Property Act in 1984, marriage in community of property with marital power and marriage out of community of property without profit and loss (and husband’s marital power) were the most common marital property systems in practice.

These systems were not abolished but the Act dispensed with the marital power concept and introduced the accrual matrimonial property system.

In the most apt of terms, community of property presupposes and indeed refers to spouses becoming jointly tied as co-owners in undivided and indivisible assets and liabilities accrued before, at the time of, and during the subsistence of their marriage.

The Courts confirmed and applied this view in the cases of Mazibuko vs National Director of Public Prosecutions 2009 (6) SA 479 (SCA), and De Wet vs Jurgens 1970 (3) SA 38 (A).

However, there are spouses that prefer each party retaining their liabilities as well as assets, wholly or partially separate. The reasons for this are various e.g subsequent divorce, sequestration, business considerations, estate planning etc.

The below are ways in which community of liabilities can be avoided for parties that prefer such a system:

• The conclusion of a valid Antenuptial Contract (ANC) which excludes community of property and profit and loss;

An Antenuptial Contract is executed to deviate from the common law and statutory matrimonial property consequences. Its validity requirements include inter alia that it must be executed before a notary and registered with the Deeds Office as per the Deeds Registries Act 47 of 1937. With this instrument spouses can exclude certain assets from their joint-estate, as well as the other’s liability from debts of the other.

• Existence of a Postnuptial Notarial Contract which excludes community of property and profit and loss;

This is whereby spouses alter their matrimonial property system after the conclusion of the marriage by way of a contract. This is provided under Section 21(1) of the Matrimonial Property Act 88 of 1984. An application must be lodged to court and upon a Court order, the matrimonial property system is altered to the preferred one. This is then registered with the Deeds Office. Principles which the Court looks at in considering the application were set out in the case of Lourens et Uxor 1986(2) SA 291 (C) and these include - 

• Sound reasons for the proposed change
• Sufficient notice to the creditors of the spouses about the proposed change
• Court must be satisfied that no other person will be prejudiced by the proposed change.

This process is an expensive one and spouses are advised to do all they can to get legal advice before the conclusion of the marriage.

• A fact that proves that the husband’s domicilium at the time of the marriage excludes community of property;

Where a marriage is concluded outside the parties’ domicile, the husband’s domicile at the time of the conclusion of the marriage prevails. This was the view of the Court in Frankel′s Estate and Another v The Master and Another (1950) ALL SA 347 A, where it was held that,

“The conclusion at which I arrive is that the matrimonial regime is governed by the law of the husband’s domicile at the time of the marriage, and that it is not governed by the law of another domicile which he then intends to acquire immediately or within a reasonable time after his marriage.”

If it can be proven that the husband’s domicile at the time of the conclusion of the marriage was one where community of property is prevailing, then one can succeed in disjoining liabilities alleged to be in the joint estate.

Van Deventer & Van Deventer Incorporated – Attorneys in Cape Town

It is imperative that one seeks expert legal advice before entering into a marriage so as to understand and therefore make informed choices with regards to which matrimonial property system best suits their circumstances. Contact us for more information.