Generally speaking, the formal validity of a marriage is determined by the law of the place where the marriage was solemnised (country that issued the marriage certificate); this is based on the common law doctrine of lex loci celebrationis. However, this does not imply that the law of the country where the marriage was solemnised, governs the legal and proprietary consequences thereof. Thus a certain degree of legal uncertainly exists where either (or both) of the parties to the marriage are not domiciled in the same country or when the marriage is solemnised in a place outside either (or both) spouses’ country of domicile.

Moreover, each country has its own internal regulations dealing with the recognition of marriages solemnised in or outside its borders, these should be observed by couples prior to marriage in South Africa.

Possible ways to address the legal uncertainty

1. Execution and registration of an antenuptial contract:

Marriage itself is essentially a contract entered into between spouses, regardless of whether or not an antenuptial contract is executed. Therefore, in terms of common law, specifically Roman – Dutch law, as in the case of other contracts, the intention of the contracting parties (consensus / the meeting of the minds) is the essential requirements for all legally valid and enforceable contracts.

Therefore, one may deduce that when a couple executes an antenuptial contract it embodies their intention and therefore, the execution thereof may serve as prima facie proof of the couple’s intention that South African law (in this case) applies to their marriage. This however, is not supported by legal precedent (to date).

Moreover, in terms of South African law, in the absence of the execution of a valid antenuptial contract, the couple is married in community of property and, the law of the place of the husband’s domicile prevails where the marriage is concluded in a territory outside the couple’s (one or both parties) domicile.

2. The law of the place of the husband’s domicile:

A person’s domicile is a particular territorial jurisdictional area or country where he / she intends to settle or is settled indefinitely. It is therefore a subjective determination based on the intention of the parties, something which is sometimes difficult to establish.

In terms of South African common law and the Domicile Act of 1992, where either or both parties are not domiciled in the same country or state or when the marriage is solemnised in a place where either or both spouses are not domiciled, the law of the place of the husband’s domicile, at time of the marriage, will govern the legal and proprietary consequences thereof.

Nevertheless, even though this theory is in our view outdated and in conflict with the principle of equality. Legal reform is therefore required. However, until its repeal the application of the theory of the husband’s domicile prevails to marriages solemnised in South Africa.

3. The Hague Convention of 1978:

The Hague convention concluded on 14 March 1978 (came into force and effect on 1 September 1992), proposal a unique and maybe ground – breaking solution to this problem.

Under the convention the legal system (to be applicable to the couple’s marriage), may be selected by the parties prior thereto and is based on:

1. “the law of the state to which either spouse is a national at the time of designation, or
2. the law of the state to which either spouse has habitual residence at the time of designation, or
3. the law of the first state where one of the spouses established a new habitual residence after marriage.”

However, according to this convention, if the spouses have not designated their marital property regime prior to marriage (by deduction – by means of entering into an antenuptial contract), the internal law of the state in which both spouses establish their first habitual residence after marriage will prevail.

The provisions of this convention may however, only be relied on in countries that are signatories thereto, namely: Austria, France, Luxembourg, Netherlands and Portugal. Therefore, like other international treaties and agreements, where South Africa is not a signatory, such agreement is the equivalent of a policy document which contents may be considered by a South African court of law, but it is not legally binding as in the case of the Constitution and / or any legislation.

Thus, the provisions of the common law, the Matrimonial Property Act 88 of 1984 (as amended) and related legislation, govern the legal and proprietary consequences of civil marriages in South Africa. Even though this convention provides couples with a great deal of flexibility in exercising their intention, the provisions hereof cannot be enforced in South African marriages.

Conclusion:

It is of the utmost importance that couples intending to solemnise their marriage in South Africa consult with an attorney prior thereto and to execute an antenuptial contract that will embody their intentions and promote their best interests.

Article provided by Schoeman Attorneys

Marriage is so much more than just the celebration and your change in status. A legally valid marriage automatically allows you to inherit in the absence of a will and to be eligible for spousal maintenance upon divorce.

The South African Constitution states that everyone is equal before the law and therefore, has the right to equal protection and benefits. In this way, it protects the people of South Africa from unfair discrimination on the grounds of race, gender, sex, sexual orientation, religion, belief and culture.
Therefore, based on the provisions of the Constitution civil, cultural, religious and same sex marriages now enjoy legal recognition, provided these are legally solemnised and registered.

The Recognition of Customary Marriages Act acknowledges customary marriages, which have taken place before and after the commencement of the Act (if validly concluded). It aligns with the constitution and recognises both monogamous and polygamous marriages –a contentious point in our law prior to the enactment of our Constitution.

Currently, in order to have your marriage legally recognised in terms of the Act, the following must be met:

1. Both parties must be majors
2. They must consent to marry each other in terms of customary law
3. The marriage must comply with the parameters laid down in the relevant customary law e.g. payment of lobolo
4. If either spouse is a minor the legal guardian’s consent is required
5. Parties must be legally allowed to marry each other e.g. not related by blood
6. If a husband in a customary marriage takes another wife making it a polygamous marriage the requirements set out in section 7(6) of the Act must be complied with, i.e. an application to the court needs to be submitted, allowing the parties to enter into an agreement regulating the proprietary consequences of the marriage.

Additionally, all customary marriages must be registered with Home affairs. This certificate constitutes prima pacie proof (adequate at first sight) that the marriage is legal and exists.

The provisions of custom will govern marriages that have not been registered and those marriages concluded before the commencement of the Act. This however can become very problematic at a later stage. For example, in the case of Gumede v the President of South Africa and 6 others, the applicant (Mrs Gumede) who married in terms of customary law prior to commencement of the Act, held that the distinction the Act makes between marriages entered into before and after commencement of the Act is unconstitutional and discriminatory based on race and gender. The Constitutional court confirmed this in its judgement of the case.

As with civil marriages, the divorce settlement is dependant on the existence of an antenuptial contract with or without the accrual system. If none exists, the marriage is automatically deemed to be in community of property.

Interestingly enough, the Recognition of Customary Marriages Act Marriages does not regulate marriages within the Hindu and Muslim religions, as they are potentially polygamous and thus in conflict with the provisions of the Constitution.

In respect of Hindu marriages the requirements set by the Marriage Act, must be complied with and the marriage registered with Home Affairs. However, if they are not, the marriage does not automatically become invalid and will instead be regulated by customary traditions.

As with civil marriages, Hindu marriages will be subject to the parameters laid out in the antenuptial contract (with or without the accrual system) or in its absence, automatically be regarded as being in community of property.

There are however various groundbreaking court cases that have set some guidelines for Muslim marriages. In particular, the cases Ryland v Edros where the court awarded spousal maintenance, Daniels v Campbell where the court ruled that the surviving spouse of a monogamous Muslim marriage can inherit intestate. However, the most vital groundbreaking case was that of Fatima Gabie Hassam v Johan Jacobs NO and six others. In this case, the deceased was married in terms of Muslim rites and had two surviving wives. The court held that it is unconstitutional that the word ‘survivor’ as described in the Maintenance of Surviving Spouses Act and the Intestate Succession Act did not include spouse(s) in a polygamous marriage.

Therefore, if you are considering entering into a customary marriage, it is highly recommended that you consult with your attorney before the time about both the legal ramifications and an antenuptial contract to protect your rights should the marriage not succeed.

ARTICLE AND IMAGE SUPPLIED BY SCHOEMAN ATTORNEYS

A business plan is defined as a formal statement of certain goals, why you believe you can reach these and your plan to do so. It usually has some background information, details regarding where funding will come from, the history and experience of the team involved and a back-up plan for “hiccups”.

The following structure of a business plan can assist you to create a document pertaining to your future marriage:

1. Cover page and table of contents
2. Executive summary
   A simple preview of the main points and motivations behind your business plan.
3. Business description
   Here, you will describe the marriage, what you value as important, your careers, interests and personalities.
4. Business environment analysis
   In a business plan, this would include competitors, demand, age groups at which you are aiming your product etc… In the context of a marriage, it should refer to the experience you have both had in previous marriages or in the marriages of your parents. Ex-spouses and children from previous relationships feature here.
5. Industry background
   Go into more detail about previous relationships or marriages, how they added to your insight and how you can use this experience to make the most out of your marriage.
6. Competitive analysis
   Unlike the business world, the competition each spouse faces is usually in the form of the other’s career, children and personal commitments. How will these be balanced and handled tactfully and fairly?
7. Market analysis
   Analyse the success of your peers that have gotten married and what they are doing right and wrong, in your opinion. Establish ways in which you can learn from their mistakes and imitate their accomplishments.
8. Marketing plan
   List a variety of initiatives that you both plan to undertake in order to ensure that the other one gets what they need out of this marriage arrangement. As in the business world, you need to use strategies that will appeal to your target market (your spouse). Communication is important in order to collate ‘data’ and to use this in your manner towards and way of dealing with your spouse.
9. Operations plan
   Think about practical, physical things that you will need to do in order to make things happy between the two of you. This could include things like “do not drop my wet towel on the bed after a shower” or “refrain from making judgements on your friends before I have gotten to know them properly”.
10. Management summary
    This outlines who will be making which decisions, why and how. One of you may be more adept at making decisions in certain areas than the other. For example, as the wife, you may want to be responsible for the finances of the family because you have a bookkeeping background, you are not working full-time and you are generally thriftier than you husband-to-be, for example. As with any company, all decisions need to be approved by both members within the marriage.
11. Financial plan
    It is very important that you know where money will be coming from and what it will be spent on. Most conflicts within a marriage are about financial issues. Make sure that you are both informed and comfortable with the decisions about money and spending.
12. Milestones
    Decide on when you would like to achieve certain goals and your plans to do so. These could include buying a second car, building your own home, having children, starting your own business and so on. As time goes on, you may have to shift the goal posts, so to speak. That is fine; just remain focussed, yet flexible.

If you have any questions regarding the legal side of marriage, visit our Antenuptial Contracts category to contact the lawyers listed there.

If you have any questions regarding the legal side of marriage, visit our Antenuptial Contracts category to contact the lawyers listed there.

In Community of Property

If you do not sign a specially prepared contract before your marriage / civil union, you will be deemed to be married “in community of property”. This means that everything you each have (assets and debts) before your union and which you acquire during your union whether by remuneration, inheritance (unless expressly excluded), gifts or otherwise is shared by both of you.

The advantage of this system is that it treats both of you equally.

The disadvantage is that both spouses are jointly and severally liable (if one of you has or gets into debt or even becomes insolvent, the other spouse will also be held responsible for what is owed). This option is thus ill advised if either or both of you run your own business (or may do so one day). Also, neither spouse may sell or give away anything of value without the written consent of the other.

That is why it is often a good idea to be married “out of community of property”. To do so, you must sign a specially prepared contract before your marriage / civil union. This is called an Antenuptial Contract, or ANC (a before union contract). There are two different types of ANCs and both need to be prepared by and signed in front of a Notary Public before you are married.

Out of Community of Property Without Accrual

Each of you keeps separate ownership of everything (assets and debts) which you bring into the union and acquire during the union. All inheritances, legacies and donations made to either of you before and during the union are automatically excluded.

The advantage of this system is that if one of you gets into financial trouble then the other one is able to retain his/her assets and you are not both affected by financial misfortune.

The disadvantage is that it leads to an unequal distribution of assets. Non-monetary contributions (such as looking after a home) are not compensated for.

To overcome this disadvantage, you may want to consider the third option:

Out of Community of Property with the Accrual System

This system combines the best of the other two and avoids the disadvantages of both. It is based on the idea that both of you will contribute equally to the union and should therefore share equally in the benefits gained during the union. The Accrual System recognizes emotional and physical support as contributions in additional to financial ones. On the other hand, each of you is protected from the debts (& possible insolvency) of the other. All inheritances, legacies and donations made to either of you before and during the union are automatically excluded.

If you choose this system, you will each need to list your assets and debts and note anything of special sentimental or financial value to you. These values do not need to be exact, but must simply be a figure that both parties feel comfortable with. In each instance subtract any money still owing from the current market value and list the net value.

• list assets which increase in value on an annual basis (e.g. property, shares)
• list assets which decrease in value on an annual basis (e.g. cars, furniture)
• list assets with sentimental value (e.g. art, jewelry)

After these lists have been recorded and your contract signed, the total financial gain made by both of you together is shared between both of you equally at the end of your marriage / civil union.

Documentation Required

In order to prepare your Antenuptial Contract I will need a copy of your identity book if you are a South African citizen or your Passports if you are not a South African citizen.

A Note from Light Attorneys

I enjoy meeting with couples on the eve of their marriage to discuss the legal options available to them. However, should it be inconvenient for you to come to my office, I can obtain all the information I require and answer all queries by email. Once the draft Antenuptial Contract has been approved by you, I email through the final document together with a Special Power of Attorney which gives me authority to notarize the Antenuptial Contract in your absence. Once both documents have been signed by you, the originals are to be posted to me. I then notarize your Antenuptial Contract and send a letter to your minister or marital officer informing him/her of your chosen marital regime. Your contract must be signed and notarized before your marriage takes place.

Article Provided By Michelle from Light Attorneys

What is an Antenuptial Contract

An antenuptial contract is a contract which is concluded between two prospective spouses prior to their intended marriage and which embodies the matrimonial property regime that shall be applicable to the marriage as well as any modifications thereto made by the parties. The parties may include any terms and conditions in the antenuptial contract which they wish to be applicable to their intended marriage, provided that such terms and conditions are not illegal, immoral or contrary to public convictions.

There are two Matrimonial Property Regimes in South Africa, namely:

1. Marriage in community of property; and
2. Marriage out of community of property.

1. Marriage in Community of Property

If parties enter into a marriage without first concluding an antenuptial contract arranging the type of matrimonial property regime which will govern their subsequent marriage, then in that event their marriage will be regarded in terms of the common law as being in community of property. The legal consequence arising from this is that both spouses will be joint owners and administrators of an undivided share in all assets owned by each of them separately prior to the marriage and all assets which they acquire during the subsistence of the marriage. Similarly, all premarital and post-marital debts or liabilities also become communal, the result being that creditors may recover their claims against the joint estate.

Certain assets do not form part of the joint estate, namely:

• Assets which are specifically excluded from community of property in terms of an antenuptial contract;
• Donations and inheritances which are expressly excluded from community of property by the testator/testatrix or donor;
• Assets acquired subject to a fideicomissum or usufruct. However, the fruits of such assets will form part of the joint estate unless such fruits are also specifically excluded therefrom;
• Any amount recovered by a spouse by way of damages for non-patrimonial loss;
• Certain life insurance policies.

Since both spouses are joint owners and administrators of the communal estate, various transactions which bind the communal estate require the consent of both spouses prior to transacting.

2. Marriage out of Community of Property

2.1 Marriage out of Community of Property excluding the Accrual System

The primary purpose for electing a matrimonial property system whereby the marriage will be out of community of property, profit and loss also explains the nature thereof, namely that each spouse will own and control his or her own estate assets without interference or control by the other spouse. The estate of each spouse consists of all the assets he or she owned prior to the marriage and any assets acquired by each spouse subsequent to the marriage. Such a matrimonial property system means that each spouse is personally liable for his or her own debts and obligations existing before the marriage and arising thereafter.

2.2 Marriage out of Community of Property incorporating the Accrual System

The accrual system is automatically applicable to marriages concluded out of community of property and with exclusion of community of profit and loss, unless the accrual system is expressly excluded in the antenuptial contract. In terms of the accrual system spouses are entitled to share equally in the “net accrual” of their respective estates upon dissolution of the marriage either by death or divorce. The term “accrual” is used to denote the net increase in value of the estate of a spouse since the date of the marriage. Because the right to share in accrual is exercisable only upon dissolution of the marriage, such right is not transferable and cannot be attached by creditors during the subsistence of the marriage. During the subsistence of the marriage to which the accrual system applies, two separate estates still exist and each spouse manages and controls his or her own estate.

Calculation of Accrual and Net Accrual

The accrual of a spouse’s estate is calculated by subtracting the net asset value of his or her estate at the commencement of the marriage from the net asset value of his or her estate upon dissolution of the marriage. This can be exemplified as follows:

If spouse A had a net asset value of R10 000-00 at the commencement of the marriage (his “initial value”) and a net asset value of R100 000-00 at the dissolution of the marriage (his “end value”) then the accrual to his estate is R90 000-00. If the initial value of the other spouse B was R20 000-00 and her end value R200 000-00, it follows that the accrual to her estate is R180 000-00.

Net accrual is calculated by subtracting the “smaller” accrual from the “larger” accrual. In the above example: R180 000-00 – R90 000-00 = R90 000-00. In accordance with the Matrimonial Property Act, A (the spouse with the smaller accrual) acquires a claim against B (the spouse with the larger accrual) for one half of the net accrual (namely – R45 000-00).

The initial value of a spouse’s estate must be declared either in an antenuptial contract or a separate statement made not later than six months after the marriage, failing which the initial value will be deemed to be nil.

Various assets are excluded from the determination of the accrual of a spouse’s estate, and they are:

• Any amount which accrued to the estate by way of damages other than damages for patrimonial loss;
• Any asset which has been expressly excluded from the accrual system in terms of the antenuptial contract of the spouses as well as any other asset which a spouse has acquired by virtue of his or her possession or former possession of such asset;
• An inheritance, a legacy or a donation which accrues to a spouse during the subsistence of his or her marriage as well as any other asset which he or she acquired by virtue of his or her possession or former possession of such inheritance, legacy or donation, except insofar as the spouses may agree otherwise in their antenuptial contract or insofar as the testator/testatrix or donor may stipulate otherwise;
• Donations between spouses other than a donation mortis causa (after death).

If you have any questions regarding the legal side of marriage, visit our Antenuptial Contracts category to contact the lawyers listed there.

If you don’t draw up an antenuptial agreement in South Africa then your marriage automatically defaults to ‘in community of property’, and the state assumes that all assets and liabilities will be shared – ‘everything which is mine is yours, and everything which is yours is mine’. This may sound lovely and more inline with the spirit in which you enter marriage, but take a step back and look at the implications:

Cons

• if one of you goes into debt, creditors have claim to all of your assets – that’s your assets as well
• if one of you has your own business and becomes insolvent, your home and all assets, in both of your names, becomes fodder for debt collectors
• there is no financial independence, certain transactions, such the sale of shares, need the consent of both parties
• if one partner should die, the estate of both the deceased and surviving partner will be wound up because it is a joint estate – not great for the surviving partner who will find themselves in legal limbo for a while

Pros

• on death or divorce, the estate is divided equally

Suddenly, a marriage contract becomes rather relevant.

Just what is an antenuptial contract?

An antenuptial contract or ANC means that you are married out of community of property.

The accrual system was initially introduced to protect women who may earn a lot less than their partners while married – but today applies to the partner who, for whatever reason, stays at home or works part-time.

There are two types of antenuptial contracts:

• marriage out of community of property without accrual
• marriage out of community of property with accrual

If the accrual is not expressly excluded in the ANC it is automatically applied. With both contracts, assets and debts are separate at the time of entering into marriage.

ANC without accrual – assets acquired before or during the marriage remain separate throughout the course of the marriage. Assets are not shared and each partner has a separate estate.

Pros

• if one of you becomes insolvent, creditors may not attach the assets of the other
• each of you is legally obliged to offer financial support to one another should one of you be unable to support himself/herself

Cons

• in the case of death or divorce, you are entitled only to those assets you have accrued in your name – should one of you choose to stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner

best suits – those who have accumulated substantial assets prior to marriage and wish to protect them.

ANC with accrual – each partner states the value of their respective assets at the beginning of marriage. Thereafter any assets are shared 50/50. One can state that specific assets be excluded from the accrual, such an inheritances, donations etc.

Pros

• you both share in the wealth accumulated during marriage
• if each of you owned property before the marriage, it remains in your respective names
• you each conduct your own independent financial affairs
• if one of you goes into debt, it cannot be claimed from the estate of the other
• in the case of divorce, any assets made whilst married are shared – it doesn’t matter who acquired them; each partner’s current net asset value is calculated by subtracting all liabilities from assets
• the ANC can be tailored to suit your needs
• it protects the partner who remains at home to care for the family

If you have any questions regarding the legal side of marriage, visit our Antenuptial Contracts category to contact the lawyers listed there.