Ian Brink, chair of the Fiduciary Institute of Southern Africa (FISA), notes that one must understand the different marital regimes in South Africa and the impact of one’s choice. The Civil Union Act, effective from December 2006, allows anyone – regardless of their sexual orientation – to marry, through a civil marriage, a civil union, a customary marriage, or a religious marriage.
Civil marriage
- In community of property
All the assets (such as personal property) and debts from before the marriage are shared in a joint estate between both spouses. As a general rule, any assets, debts and liabilities acquired by either spouse after their marriage will then also be added to this joint estate. Both parties must consent to the acquisition of assets, and both are accountable for any debt accrued in the estate. There is no contract (antenuptial agreement) that arranges the ownership of the assets on death or divorce.
- Out of community of property
Couples who understand the role of marital regimes in estate planning tend to get married in terms of the out-of-community-property regime, by Antenuptial Contract.
Antenuptial contract
Couples who prefer not to be married in community of property must sign an antenuptial agreement. This contract is prepared by a lawyer and is entered into before the marriage.
An antenuptial agreement might be especially important for someone who already has assets such as a business, or family obligations like children from a previous marriage.
The contract will clearly set out how the assets should be dealt with on death or divorce to allow continued management of the business or ensure that family obligations are adhered to.
People who do not want to follow the route of a civil marriage have the option of tying the knot in a civil union, or a customary (traditional) and religious marriage.
Without the accrual system
The couple signs and registers an antenuptial agreement stipulating that their assets before the marriage remain their own and any new assets acquired after the marriage remain in the estate of the owner of the assets.
With the accrual system
Zero base with accrual
The agreement stipulates that the marriage starts from a zero base (no one has any assets or liabilities). On death or divorce the estate calculation is done from a zero base.
Exclusions with accrual
The agreement stipulates that the assets before the marriage (for example a farm in spouse A name and a business in spouse B name) must be excluded from the accrual system post-marriage. On death or divorce the value of the excluded assets are brought to current value and must be deducted from the accrual during the marriage.
Civil union
The 2006 Civil Union Act legalised same-sex marriages in SA, allowing these parties to get married or enter into a civil partnership. Civil unions may be conducted by designated marriage officers for specific religious denominations or organisations and are deemed to be out of community of property without accrual.
Customary/traditional marriage
This is a marriage that is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”. This marital regime used to be considered out of community of property without accrual. The Sithole and Another v Sithole and Another 2021 (6) BCLR 597 (CC) case changed that. The Constitutional Court ruled on 14 April 2021 that, amongst others, “All marriages of black persons that are out of community of property and were concluded under section 22(6) of the Black Administration Act before the 1988 amendment are, save for those couples who opt for a marriage out of community of property, hereby declared to be marriages in community of property.”
Religious marriage
The South African legal system did not recognise religious marriages as valid marriages because they were considered potentially polygamous and contra bones mores (‘against good morals’).
In December 2020 the Supreme Court of Appeal handed down a judgment that changed this. The court found that both the Marriage Act and the Divorce Act 70 of 1979 are inconsistent with the Constitution. Government (the president, cabinet, and parliament) was given 24 months to remedy the inconsistencies and defects in the legislation. All religious marriages now enjoy the same rights and legal security as civil marriages, civil unions, and customary marriages.
Cohabitation
South Africa has no regulations governing cohabitation, but cohabitation does have legal consequences.
Certain legislation does define ‘spouse’ to include a partner in a cohabitation relationship. South African courts have on occasion recognised that a ‘universal partnership’ exists between couples, provided that the requirements of our common law are met in the circumstances.
The Constitutional Court also declared the Intestate Succession Act to be unconstitutional in so far as it only includes spouses in a marriage as intestate heirs, meaning that life partners in a stable long-term relationship will now qualify as spouses and will inherit as such if the other partner dies without a will. Parliament was given 24 months to rectify this.
Brought to you by the Fiduciary Institute of Southern Africa (Fisa).
The original story is on https://www.moneyweb.co.za/in-depth/fisa/glossary-of-the-different-marital-regimes-in-sa/