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On 20 October 2020, parliament repealed section 6 of the Civil Union Act that previously permitted a marriage officer to object to solemnise a civil union between persons of the same sex on the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
A summary of customary marriages in South Africa
The Recognition of Customary Marriages Act, 120 of 1998 (RCMA), that came into operation on 15 November 2000, gives full legal recognition to customary marriages in South Africa. The following summarises the position: The law recognises your customary marriage if you and your spouse are both older than 18; You have both agreed to be… Continue Reading
MATRIMONIAL PROPERTY IN CIVIL & CUSTOMARY MARRIAGES
What is a Civil Marriage? This is a marriage in terms of the Marriage Act No 25 of 1961 and the Matrimonial Property Act No 88 of 1984. How do you marry in civil law? A marriage officer, i.e. a priest or magistrate, performs the ceremony. The couple signs a register. Each spouse receives a… Continue Reading
Marriage in Community of Property
With due acknowledgement to the Law Society of South Africa How does it work? Both spouses share equally in the assets and liabilities. Spouses have equal powers of administration and (except for some exceptions) both can act independently. Written consent of both is required for certain important transactions such as those relating to fixed property, suretyship… Continue Reading
Marriage out of community without the accrual system
With due acknowledgement to the Law Society of South Africa You can have your attorney draft an antenuptial contract tailored to your own individual needs. Such a contract is recommended where: Both parties are business people in a exceptionally high income group and where they plan not to have children at all. A well-off widower and… Continue Reading
Marriage out of community of property with the accrual system
Describes the accrual system With due acknowledgement to the Law Society of South Africa During the marriage each spouse retains control of his or her own property, builds up his or her own estate and each is responsible for his or her own debts. On dissolution of the marriage by death or divorce, the value of… Continue Reading
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