This is a judgment of the Constitutional Court, declaring invalid certain provisions of the Marriage and Divorce Acts, and recognising Muslim marriages. On application for confirmation of an order of constitutional invalidity granted by the Supreme Court of Appeal: 1. The Supreme Court of Appeal’s order of constitutional invalidity is confirmed: 1.1. The Marriage Act 25 of 1961… Continue Reading
Marriages solemnised between a foreigner and a South African citizen.
A client asked: “I am South African, and my husband is a Zimbabwean national. We got married in Johannesburg. Are we married in or out of community of property?” As a matter of private international law and longstanding South African precedent, the matrimonial property regime of a married couple is determined by the lex domicilii… Continue Reading
Enforceability of a prenuptial executory donation
DB v CB 2021 JDR 0896 (GP) 2021 JDR 0896 (GP) Marriage — Divorce — Proprietary consequences — Marriage out of community of property — Antenuptial contract — Enforceability of prenuptial executory donation with terms contradicting those of parties’ antenuptial contract — Enforcing such inconsistent with court’s discretion under Divorce Act 70 of 1979, s… Continue Reading
Amendment of your Antenuptial Contract
Can married parties vary the term of their existing antenuptial contract (ANC), without going to court? It is a general rule in our law that an ANC cannot be amended between the parties after the conclusion of marriage and only a court can amend it. The High Court application is costly. The parties can conclude… Continue Reading
Recognition of foreign marriages in South Africa
Destination weddings If you intend to have a destination wedding or if the husband is not a South African, you can and should enter into an antenuptial contract regulating the consequences of your marriage. Otherwise, you may be married in community of property. See this article. Registering a foreign marriage in South Africa You should… Continue Reading
Marriages solemnised outside South Africa.
A client asked: ‘We are a South African couple that got married in Mauritius. Are we married in or out of community of property? These are the legal principles: • 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… Continue Reading
Civil Union Act amendment
On 20 October 2020, parliament repealed section 6 of the Civil Union Act that previously permitted a marriage officer to object to solemnise a civil union between persons of the same sex on the ground of conscience. Thiruna Naidoo of the Centre for Human Rights stated that that the amendment was a positive step toward… Continue Reading
Destination weddings and marital status
I’m getting married in the UK. Do I need an antenuptial contract (ANC)? The “default” position in the UK (also in Zimbabwe and Botswana, to name a few other countries) of being married out of community of property when one gets married without a contract, is diametrically opposed to the South African position, which is… Continue Reading
Can I exclude my pension benefits from an ANC with accrual?
A client asked me: Can parties exclude from the operation of the accrual, the one party’s entitlement to share in the pension or provident benefits of the other party, and vice versa? The simple answer is YES. Retirement or provident fund benefits may be excluded in the ANC (whether it’s a spouse’s entitlement to a… Continue Reading
Is an unregistered marriage contract binding on the parties?
In a recent case heard in the High Court of KwaZulu-Natal, (KS v MS [2015] JOL 33262 (KZD)), in a divorce action between the parties, two issues were separated and were now before the Court. The first issue was whether the signing of a power of attorney by the parties and the initialling of a draft antenuptial contract… Continue Reading
COVID-19 Update