- Parties who get married in South Africa without any form of contract are automatically married in community of property. A marriage in community of property applies if spouses do not sign any form of agreement, whether by choice, lack of understanding or omission.
- The default position is that every piece of property and every debt is shared between the spouses. Therefore, if one spouse has a substantial amount of money and the other spouse does not have much money, everything is pooled, including all assets, liabilities and inheritance.
- In terms of this system, there is no possibility of individual ownership or liability, that means that a spouse can claim half of any of the other spouse’s wealth that he or she may have earned, including his or her Pension or Retirement Fund (reckoned up until the day of the divorce).
- If one spouse gets into debt, or is declared insolvent, the other spouse will be held responsible for paying off this debt and will also be declared insolvent.
- If one spouse is paying alimony or child support in respect of a previous marriage partner or child, the other spouse is also held liable.
MARRIAGE OUT OF COMMUNITY OF PROPERTY
- Spouses can enter into an agreement in terms of which the marriage is one out of community of property.
- In this agreement, each party’s property belongs to that party alone and there is no provision for sharing whatsoever at the point of death or divorce. This is often common when a second marriage is being entered into and where no children are involved, alternatively the parties agree to this form of matrimonial regime.
- This basically means what’s yours is yours and what’s mine is mine.
- The benefit of this contract is that the parties’ estates remain separate, for example if a husband’s estate accrues a substantial amount of debt, the wife cannot be sued for this debt and her assets are protected.
MARRIAGE OUT OF COMMUNITY OF PROPERTY, WITH THE ACCRUAL SYSTEM
- This agreement is similar to the one above, with one vital difference – This contract allows you to share whatever assets you accrue during your marriage, up until death or divorce. The Court will then calculate what amount has been accrued by each spouse during the course of the marriage but will exclude whatever amounts have been acquired prior to marriage and also any inheritances bestowed on either of the parties during the course of the marriage. The accrual in each party’s estate will be calculated and shared in the event of the divorce or death, but inheritances are excluded, as set out above.
- Each party’s estate is completely separate and protected from creditor/s of a spouse during the course of the marriage and sharing only applies on death or divorce in terms of a calculation as to what each spouse may have accrued from inception of the marriage.
The Matrimonial Property Act and the Divorce Act governs divorce law in South Africa.
If parties are married in community of property or in terms of the Accrual System, one spouse can claim “forfeiture of benefits of the marriage” based on the conduct of the so-called “Guilty spouse” during the marriage. For example, if one of the spouses has committed adultery, the adulterous spouse could be ordered to forfeit a portion of his or her benefits of the marriage, alternatively, if the duration of the marriage is short, the community of property or the accrual calculation may be altered and reduced in the discretion of the Court.
The Matrimonial Property Act, 88 of 1984 governs the matrimonial property system chosen by the spouses in respect of either of the three marriage regimes set out above.
- Chapter 1 (Clauses 2 to 10) deals with the Accrual System.
- Chapter II (clauses 14 – 17) deals with Marriages in Community of Property.
- Chapter IV (Clauses 18 – 38) deals with General Provision.
- Clause 20 deals with “Power of Court to order division of joint estate”.
The Divorce Act 1979 governs divorce proceedings.
- Clause 7 deals with “Division of assets and maintenance of the parties”.
- Clause 9 deals with “Forfeiture of patrimonial benefits of marriage”.
All marriages in South Africa are automatically in community of property, and the other matrimonial regimes referred to above (out of community of property or the Accrual System) must be entered into by means of an Antenuptial Contract.
If one decides to marry out of community of property, one needs to approach a Notary Public who will draw up an Antenuptial Contract which will be registered in the Deeds Office.
If one enters into an Antenuptial Contract, the marriage will be automatically subject to the Accrual System, unless one specifically excludes that system from the contract.
The Antenuptial Contract must be signed before you get married.
MARRIAGES SOLEMNISED OUTSIDE SOUTH AFRICA
- The domicile of the husband at the time of entering into the marriage determines the matrimonial regime to be applied by the South African courts.
- Where the husband in a marriage regards South Africa as his domicile (permanent place of residence) at the time of conclusion of the wedding, such marriage is one automatically in community of property in the absence of the execution of a valid Antenuptial Contract.
- In Frankel’s Estate & another v The Master & another, 1950 ALLSA 347a, the Court held that the Law of the place of the husband’s domicile prevails where a marriage is concluded in a territory outside of the husband’s domicile.
- The formal validity of the marriage is determined by the Law of the place where the marriage is solemnized. The South African Court looks at domicile at the time of the marriage in order to apply the applicable matrimonial regime, as set out above.
- In Holland v Holland, 1973(1) SA 897T, the Court held that a person’s domicile is a particular jurisdictional area or country where he or she intends to settle or to settle indefinitely. The Court in that case held that “The matrimonial regime is governed by the Law of the husband’s domicile at the time of the marriage and that is not governed by the law of another domicile which he then intends to acquire immediately or within a reasonable time after his marriage.”
- The above principles were confirmed in the Domicile Act of 1992 and the case of Esterhuizen v Esterhuizen, 1999(1) SA 492(c).
- In cases where the parties have concluded an agreement of settlement which is made an Order of Court, the provisions relating to their divorce are followed as set out in their divorce agreement of settlement.