Marriage: Marital Property Regimes | Everything Property
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Marriage: Marital Property Regimes

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By Leanne Jooste, B Law Inc. Attorneys

In SA, there are various marital property regimes, and it is important to understand the patrimonial consequences of each regime and how it affects property ownership.

MARRIAGE IN COMMUNITY OF PROPERTY

The married couple has a joint estate, meaning that all assets and liabilities are joined together in one estate. Any properties bought or sold will be registered in both spouses names and both spouses will need to sign the offer to purchase and the property transfer documentation.

MARRIAGE OUT OF COMMUNITY OF PROPERTY INCLUDING THE ACCRUAL SYSTEM OR EXCLUDING THE ACCRUAL SYSTEM

A couple will sign an antenuptial contract prior to getting married which will be registered in the Deeds Registry, subject to the accrual system or with the exclusion of the accrual system. Spouses can purchase properties either on their own or in both of their names. Spouses do not have to co-sign the offer to purchase and the property transfer documentation unless they are purchasing the property together.

CUSTOMARY LAW (TRADITIONAL) MARRIAGES

All monogamous (only one spouse) customary marriages entered into before or after the coming into operation of the Recognition of Customary Marriages Act 120 of 1998 are automatically deemed marriages in community of property, unless an antenuptial contract was entered into and registered at the Deeds Registry. Polygamous (more than one spouse) customary marriages are governed by Court Order or customary law and deemed marriage out of community of property.

The couple has to register the marriage at Home Affairs, however, non-registration of a customary marriage at Home Affairs does not invalidate such a marriage. From the property law perspective, it should always be insisted upon to obtain proof or registration of the marriage to prove that a valid marriage subsists. Alternatively, an affidavit must be provided that the person is unmarried and that he or she never entered into any negotiations, in terms of the customs and usages of the Indigenous people of South Africa, resulting in a marriage.

CIVIL UNIONS MARRIAGES

Civil unions are recognized in SA under the Civil Union Act. Civil unions can be formed by opposite-sex couples and by same-sex couples, and have the same rights, responsibilities, and legal consequences as marriages under the Marriage Act. Foreign Marriages. If a couple is married according to the law of any other country than SA, then both spouses need to sign the offer to purchase and the property transfer documentation.

MUSLIM OR HINDU RITES MARRIAGES

As from 1 May 2014, an Imam, who has been duly registered as a marriage officer in terms of the Marriage Act, may now solemnise a Muslim marriage. The Proprietary consequence of a Muslim marriage, so solemnised, will now be regarded as a civil marriage in terms of the Marriage Act. This means that such a marriage will be in community of property, unless the spouses have entered into an antenuptial contract excluding the community of property regime, with or without the inclusion of the accrual system. This does however NOT mean that all Muslim marriages are now valid. Muslim marriages not solemnised before a registered Imam will still be regarded as “unmarried.”

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