Ian Brink | 13 April 2023
Ian Brink is the managing director of Crest Trust, a member of the Fiduciary Institute of South Africa (FISA) and holds the Fiduciary Practitioner of South Africa (FPSA®) designation.
Before you tie the knot with your loved one, it is important to understand the regulations that govern some important aspects of marriage or partnerships in South Africa. Your marital regime has consequences in estate planning, affecting situations such as divorce and inheritance.
Here are some definitions to guide you:
Civil marriage
The Civil Union Act, effective from December 2006, allows anyone – regardless of their sexual orientation – to marry either through a civil union, a civil marriage or a customary marriage.
In community of property
Being married in community of property in South Africa basically means that 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.
Out of community of property excluding the accrual system
A marriage out of community of property without the accrual comes into being when the spouses sign and register their antenuptial contract. The legal consequence of this marital regime is that each spouse maintains and operates their own estate without the input of their spouse.
Out of community of property with the accrual system
Marriage out of community of property with accrual means that both spouses have separate estates when they get married and don't share profits or losses for the duration of the marriage.
Antenuptial contract
An antenuptial contract/agreement is entered into where couples do not want to get married in community of property and is concluded before marriage. An antenuptial agreement might be especially important for someone who already has assets like a business, or family obligations like children from a previous marriage.
The rights of life partners
Until fairly recently, life partners in South Africa were not able to inherit from the other. In October 2020 the Western Cape High Court ruled that this was unconstitutional in so far as it excludes life partners in a relationship intended to be permanent, as per the definition of “spouse”.
The Constitutional Court subsequently upheld this ruling last year and you can read how Louis van Vuren, the chief executive officer of the Fiduciary Institute of South Africa explained the implications of the court case in More rights for life partners but it still pays to protect yourself
In essence it means that partners in a permanent relationship who live together as a “married couple” and have reciprocal duties of support are able to inherit and claim maintenance from a deceased estate in the same manner as a spouse from a marriage.
Same-sex marriages
When the Civil Union Act came into effect, it made same-sex marriage legal in South Africa.
This means that two people of any sex can be married or enter into a civil partnership in terms of the Act.
Customary marriage/traditional marriages
A customary marriage is one that is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”. This does not include marriages concluded in accordance with Hindu, Muslim or other religious rites.
Lobola
Lobola is an African custom by which a bridegroom's family makes a payment in cattle or cash to the bride's family shortly before the marriage.
Religious marriages
A religious marriage was not recognised as a legal marriage under South African law prior to the judgment handed down by the Supreme Court of Appeal as recently as 18 December 2020.
The Supreme Court of Appeal judgment set the precedent for Muslim marriages in South Africa, declarting that both the Marriage Act and Divorce Act are inconsistent with the Constitution pending legislative reform.
All Muslim and Hindu marriages will now enjoy the same rights and legal security as civil marriages, customary marriages and civil unions, except that the matrimonial property regime will be regarded as out of community of property.
Conclusion
Before you decide on the terms under which you wish to marry or live with a partner, you should consult a financial planner or fiduciary practitioner who can guide you on the long-term implications of the contract you enter into.
