After almost a week we continue where we left off – discussing the different marriages that can be concluded by couples in South Africa as well as unions accorded the same status and benefit as marriages. Previously we highlighted that a validly concluded marriage can be deemed as either a civil marriage or customary marriage or religious marriage. We had discussed the different types of civil marriages in our column last week save for a marriage out of community of property excluding accrual. We have also yet to discuss customary marriages or religious marriages, let alone unions accorded the same status and benefits as a marriage. This is our second article on the topic in a planned three column discussion of same.
The primary purpose of a marriage out of community of property excluding accrual is to exclude the sharing of any assets and liabilities acquired before and during the marriage by the parties vis-à-vis each other. It is essential that the parties to this marriage must conclude a written agreement, which contract is prepared by a notary public, prior to the commencement of the marriage or alternatively during their marriage in which instance it must be approved by the Court as it has the effect of altering the parties’ marital regime, for purposes of regulating their marriage.The advantages of this marriage is that a creditor cannot sue one spouse as a result of the debts of another spouse, and each spouse may deal with his/her assets at his/her discretion without the consent of the other spouse to the marriage unless it has to do with an asset which is jointly owned and registered in the names of the spouses.
The biggest disadvantage of this type marriage is that it does not allow for the sharing of assets and liabilities upon the dissolution of the marriage either through divorce or death. For example in the event that a couple gets married in terms of this marriage and one of them dies [known as ‘the deceased’] without a will, then whatever value of the assets owned by deceased during his/her lifetime would not go to the surviving spouse save for a so-called child’s share in terms of the Intestate Succession Act. A child’s share is currently deemed to be R 250 000 that every spouse is entitled to receive in the event of death of the other spouse (the ‘deceased’) having died without a will. This means that if the deceased died without a will and having left R 1 000 000.00 in his/her bank account as his/her only property, his surviving spouse would only be entitled to receive R 250 000.00 as a child’s share whilst the remaining would be shared by his/her children. If the deceased dies without any issue – child or children, then the money would be shared by the deceased’s parents, failing the parents then the deceased’s siblings would be entitled to share in the deceased’s assets or failing the siblings whoever is next in the bloodline to deceased would be entitled to share in deceased’s property.
Briefly, all civil marriages in South Africa are governed by the Marriages Act 25 of 1961 and MatrimonialProperty Act 88 of 1984. Civil marriages are monogamous and heterosexual in nature. This means no civil marriage can be concluded by people in a same sex relationship, and beyond a couple. Lastly in order to conclude a valid civil marriage the following requirements must all be satisfied:
1. The couple must be 18 years or legally emancipated;
2. The couple must consent to be married to each other;
3. It must be conducted before a marriage officer in the presence of at least two witnesses.
