Marriage and Matrimonial Property Systems

Marriage is traditionally defined as a legally recognised life-long voluntary union between a man and woman to the exclusion of all other persons. Marriage is a union based on consensus but it is generally acknowledged that marriage is not a contract.

Because marriage is based on consensus, it is obvious that the parties must have the capacity to act in order to be able to enter into a valid marriage

Legal requirements for a valid marriage are as follows:

  1. Capacity to Act – the parties must be able to enter into the marriage – this is not possible for mentally ill persons and minors.
  2. Both parties must consent to the marriage – only major persons have the capacity to enter into a marriage on their own and consent to same. Where a minor (person under 18 years of age) wishes to marry, consent from the parent or guardian is required.
  3. The marriage must be lawful – certain circumstances may result in a marriage being declared unlawful or void. Examples include parties who are already married (a second marriage could be classified as bigamy which is a criminal offence), blood relations, or guardian and ward relationships.
  4. The parties must be 18 years old, and if not need the consent of their parents or guardians.
  5. Prescribed formalities – certain formalities contained in the Marriage Act have to be adhered to for the solemnisation of a marriage. Some examples include: the marriage being officiated by an appointed marriage officer, the marriage is to be registered and various other prerequisites during the ceremony

One of the invariable consequences of marriage, once entered into, is the reciprocal duty of support each spouse owes the other, which is imposed for the entire duration of the marriage, provided the spouse claiming it, is in need of maintenance, and further provided that the spouse from which it is claimed, is able to provide it.

Our law rebuttably presumes that all marriages are entered in community of property. This means that our law presumes that all marriages are entered into in this manner, but this presumption may be rebutted or challenged, depending on the existence of certain circumstances.

Accordingly, the presumption is rebutted where:

  1. There exists a valid antenuptial contract (ANC) in terms of which the community of property and profit and loss (the basis of a marriage in community of property) is excluded
  2. There exists a valid postnuptial notarial contract entered into with the permission of the High Court, wherein community of property is excluded. This is where an ANC is entered into after the marriage.
  3. The husband is domiciled in another country, which laws differ from our own. According to our law the patrimonial consequences of a marriage are governed by the law of the place where the husband is domiciled at the time of marriage; accordingly, if the husband is domiciled (lives permanently) in a country where the presumption is that all marriages are concluded out of community of property, unless otherwise agreed, then our South African presumption of marriages will also be rebutted.
  4. A marriage has been entered into by black persons in terms of the Black Administration Act, which holds that civil marriages entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, are out of community of property, unless the spouses made a joint written declaration before a magistrate, commissioner or marriage officer, within one month prior to the marriage, that they wished to be married in community of property.

If none of the above can be proved, the marriage is regarded as being in community of property


Marriages in Community of Property and Profit and Loss

The accepted view is that a marriage in community of property entails that a husband and wife become tied co-owners in undivided half-shares of all assets and liabilities they have at the time of their marriage, as well as all assets and liabilities they acquire during the marriage.

Once married, the separate estates of the husband and wife are automatically merged into one joint estate for the duration of the marriage. This means that all liabilities incurred by either spouse, and all assets acquired by either spouse will be shared. In some instances spouses will not be able to enter into contracts or agreements without the consent of their spouse.

With regard to liabilities – either spouse will bind the other to be liable for debts incurred. If either party is legally obliged to make payment of a debt (where judgment is taken against them), the creditor can collect either party’s assets to satisfy such debt, whether or not that spouse incurred the debt.

At the termination of the marriage, all liabilities are settled from the joint estate first and the balance of the joint estate is then distributed equally between the spouses.

Marriages out of Community of Property and Profit and Loss

In order to enter into a marriage with the exclusion of community of property, the parties must execute an antenuptial contract, or ANC as it is commonly known.

The purpose of an ANC is to exclude some of the common law or statutory consequences of marriage, and parties may thus stipulate that there will be no community of property between them.

A marriage out of community of property and profit and loss, merely means that each party will retain their own assets and liabilities, which they had before the marriage, and these as well as any future assets or debts will also be retained throughout the marriage, to the exclusion of the other spouse. Thus either party has no claim or entitlement to the assets of the other, and will also not be liable for the debts of the other.

The only way to change ones matrimonial property regime from in community of property to out of community of property, once the marriage is entered into, is by way of a Court Order.

Marriages out of Community of Property, with the application of Accrual

The accrual system was an attempt on the part of the legislature to remove the disadvantages of the old standard form ANC, as this was generally very prejudicial towards the wife, especially where she was a homemaker or housewife. Thus if she was fully occupied at home for most of her married life, and was thus unable to accumulate her own estate, the financial position in which she was left on the eventual dissolution of the marriage could be most unfavourable – meaning that she would be left with no assets, money or work experience to assist her after the dissolution of the marriage.

The aim of the introduction of the accrual system was to prevent the problem that a wife may face, who is married strictly out of community of property, where she has no legal claim to the growth of her husband’s estate, despite having contributed directly or indirectly to its increase, and was thus unable to accumulate her own estate precisely because she assisted in the increase of her husband’s estate.

Put plainly, the idea is that at the dissolution of a marriage out of community of property, both spouses ought to share in the assets accumulated by their mutual industry during the subsistence of the marriage, without the necessity of having a joint estate (or marriage in community of property) during the subsistence of the marriage.

In order to enter into a marriage in this manner, the parties will have to stipulate their choice in an ANC.

On the dissolution of the marriage, the spouses share equally in the accrual (or the growth which the estates of both spouses showed during the subsistence of the marriage).

Accrual sharing is brought about giving the spouse whose estate shows the smaller accrual (or growth) or no accrual at all, a claim to share in the accrual of the spouse whose estate shows the greater increase.

The actual calculation of accrual is complicated and difficult to illustrate. It is accordingly advised to discuss this aspect with your attorney.

As stated before, if parties wish to change their matrimonial property system from in community of property to out of community of property with accrual, they would need to approach the High Court and make a formal application. These aspects can also be discussed with an attorney.

Scroll to Top