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 copy of the marriage certificate.
How many wives can a man have in a civil marriage?
A man can only have one wife in a civil marriage.
How is a civil marriage ended?
It is ended by divorce, death or by annulment (a court of law declares that there never was a marriage).
How many wives can a man have in civil law?
A man can only have one wife in civil law. This is called a monogamous marriage. He can only marry a second wife if the first wife dies or if the marriage is ended by divorce.
How do you marry in customary law?
A man can have many wives in customary law. This is called a polygamous marriage.
What is the matrimonial property system in a civil marriage?
There are three matrimonial property systems to choose from in a civil marriage.
How do you enter into a valid ante nuptial contract?
An ante nuptial contract is drawn (written) for the couple by an attorney who is also a notary. The contract will have a clause that excludes accrual so that each spouse owns his/her own property and does not owe the other anything if the marriage ends in divorce. The couple have to sign the contract in the notary’s presence. The notary registers the ante nuptial contract in a deeds registry office. The couple will have to pay the attorney for the service and pay for revenue stamps and a deeds registry fee.
Problem: If the couple marry after the commencement of the Matrimonial Property Act i.e. after 1 November 1984, the spouse who paid more for household necessities for the joint household, cannot claim the amount that the other spouse should have paid, unless they made an agreement that the spouse who paid more can claim from the spouse who paid less.
What is accrual?
Accrual is the amount by which the spouses are richer at the end of their marriage than they were at the beginning of their marriage.
What is the effect of accrual on a marriage?
Spouses whose marriage is subject to accrual do not share their property during the marriage, but if the marriage ends, the couple has to share the amount by which they became richer during the marriage. For example, if the husband saved R20 000 during the marriage and the wife saved R10 000 during the marriage, he must give her R5 000 so each gets half of the total amount i.e. R15 000.
When does the right to claim a share of the accrual arise?
The right to claim a share of accrual arises if the marriage is ended by divorce or by death of one of the spouses.
Who has the right to claim a share of the accrual?
The spouse with the smaller accrual may claim from the spouse with the larger accrual, or from his/her deceased estate.
What is the joint estate in community of property?
What does not form part of the joint estate?
The equal powers of spouses to deal with the joint estate.
There are powers that each spouse has equally with the other, to deal with the joint estate. Each spouse in a marriage of community of property has the same power to:
This power is limited by the requirements of written consent, and consent, of the other spouse in dealing with certain property in the joint estate. This means that for certain acts, a spouse needs either the written consent, or, the consent, of the other spouse.
Interpretation: The limitations which the Matrimonial Property Act No 88 of 1984, places on the powers of the spouses to deal with the property in the joint estate protects the interests of each spouse in the joint estate.
The Act ensures that the spouses administer the joint estate equally and together except in special circumstances.
Note: The limitation of powers of the spouses to deal with the property in the joint estate relates to assets in the joint estate: Such as, fixed property (land/ buildings); money; investments; valuable assets; credit agreements; payment of debts for another person; inheritance.)
Customary Marriages entered into before the commencement of the Recognition of Customary Marriages Act No 120 of 1998: Date of commencement – 2 December 1998.
Are these marriages valid?
All marriages which were valid in customary law, before the commencement of the Recognition of Customary Marriages Act No 120 of 1998;
If these marriages existed at the time of the commencement of the Act, they are for all purposes recognised as marriages.
What is the status and capacity of spouses?
A wife (wives) in a customary marriage has full status and capacity, on the basis of equality with her husband.
A wife’s status and capacity include the capacity to:
The wife also keeps any rights and powers that she might have at customary law.
The wife’s equal status and capacity is subject to/(limited by), the matrimonial property system (agreement about property) governing the customary marriage.
Interpretation: Equal status and capacity of spouses – The Act does not state that the customary marriage has to be registered for the spouses to have equal status and capacity.
Sourced from the University of Kwa-Zulu Natal
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