One must understand the different marital regimes in South Africa and the impact of one’s choice.
It was the American humourist Erma Bombeck who said: “Marriage has no guarantees. If that’s what you’re looking for, go and live with a car battery.”
A bit of dark humour, but marriage is essentially a contract between two parties, and sometimes between more than two parties. When we enter the legal realm of contract law there are strict terms and conditions to adhere to, says Ian Brink, chair of the Fiduciary Institute of Southern Africa (Fisa).
One must understand the different marital regimes in South Africa and the impact of one’s choice. The Civil Union Act, effective from December 2006, allows anyone – regardless of their sexual orientation – to marry, through a civil marriage, a civil union, a customary marriage, or a religious marriage.
“You must predetermine what the outcome could be should the contract come to an end other than by death because your marital regime has an impact on asset management within an estate,” says Brink.
This requires an understanding of the impact of a marriage in community of property, out of community of property with accrual, or out of community of property with no accrual.
Civil marriage
1. In community of property
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. Both parties must consent to the acquisition of assets, and both are accountable for any debt accrued in the estate. There is no contract (antenuptial agreement) that arranges the ownership of the assets on death or divorce.
2. Out of community of property
Couples who understand the role of marital regimes in estate planning tend to get married in terms of the out-of-community-property regime.
Without the accrual system
The couple signs and registers an antenuptial agreement stipulating that their assets before the marriage remain their own and any new assets acquired after the marriage remain in the estate of the owner of the assets.
With the accrual system
Zero base with accrual
The agreement stipulates that the marriage starts from a zero base (no one has any assets or liabilities). On death or divorce the estate calculation is done from a zero base.
Exclusions with accrual
The agreement stipulates that the assets before the marriage (for example a farm in her name and a business in his name) must be excluded from the accrual system post-marriage. On death or divorce the value of the excluded assets must be deducted from the accrual during the marriage.
Antenuptial contract
Couples who prefer not to be married in community of property must sign an antenuptial agreement. This contract is prepared by a lawyer and is entered into before the marriage.
An antenuptial agreement might be especially important for someone who already has assets such as a business, or family obligations like children from a previous marriage.
The contract will clearly set out how the assets should be dealt with on death or divorce to allow continued management of the business or ensure that family obligations are adhered to.
People who do not want to follow the route of a civil marriage have the option of tying the knot in a civil union, or a customary (traditional) and religious marriage.
Civil union
The 2006 Civil Union Act legalised same-sex marriages in SA, allowing these parties to get married or enter into a civil partnership. Civil unions may be conducted by designated marriage officers for specific religious denominations or organisations and are deemed to be out of community of property without accrual.
Customary/traditional marriage
This is a marriage that is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”. This marital regime is considered out of community of property without accrual. This regime does not include marriages concluded in accordance with Hindu, Muslim or other religious rites.
Religious marriage
The South African legal system did not recognise religious marriages as valid marriages because they were considered potentially polygamous and contra bones mores (‘against good morals’).
In December 2020 the Supreme Court of Appeal handed down a judgment that changed this. The court found that both the Marriage Act and the Divorce Act 70 of 1979 are inconsistent with the Constitution. Government (the president, cabinet, and parliament) was given 24 months to remedy the inconsistencies and defects in the legislation. All religious marriages now enjoy the same rights and legal security as civil marriages, civil unions, and customary marriages.
Cohabitation
South Africa has no regulations governing cohabitation, but cohabitation does have legal consequences.
Certain legislation does define “spouse” to include a partner in a cohabitation relationship. South African courts have on occasion recognised that a “universal partnership” exists between couples, provided that the requirements of our common law are met in the circumstances.
The Constitutional Court also declared the Intestate Succession Act to be unconstitutional in so far as it only includes spouses in a marriage as intestate heirs, meaning that life partners in a stable long term relationship will now qualify as spouses and will inherit as such if the other partner dies without a will. Parliament was given 24 months (until January 2024) to rectify this.
This article was written by Ian Brink for FISA.