Before you choose a specific marital regime to govern your marriage, it is important to understand which marital regimes exist and more specifically the advantages and disadvantages of each.
On choosing a marital regime, you are basically deciding on how assets need to be distributed when the marriage dissolves. A marriage dissolves in one of two ways: either by death or by decree of divorce.
The three different marriage types recognised by South African law are:
. Civil marriages
. Civil unions/partnerships
. Customary marriages
Civil Marriages
This is the most common type of marriage in South Africa.
Parties have a choice of three different marital regimes:
. Marriage in community of property
. Marriage out of community of property – subject to the accrual system
. Marriage out of community of property – excluding the accrual system.
Accrual System
All marriages out of community of property require that an antenuptial contract be concluded and registered.
If no such antenuptial agreement was registered, then the marriage would automatically be considered to be in community of property.
Only heterosexual couples can enter into a civil marriage. Since 2006, same gender couples can enter into a civil union (or a civil partnership).
The Civil Union Act of 2006 allows two people to form a civil union/partnership. Civil unions are not limited to same-sex couples. Any couple can enter into a civil union.
This marital regime enjoys the same rights, responsibilities and legal consequences as the above listed civil marriages and as such if no antenuptial agreement was entered into, it will automatically be regarded as being in community of property.
The third type of marriage is customary marriages and is governed by customary law.
A customary marriage can only be concluded in accordance with customary law. These marriages can be monogamous or polygamous.
Spouses in a customary (monogamous) marriage can register their marriage as a civil marriage (and choose one of the three applicable regimes stated above under civil marriages).
In terms of the indigenous African customary laws, a polygamous marriage allows that a man can marry more than one wife. As civil marriage legislation does not allow for polygamous marriages, all polygamous marriages will be registered as out of community of property, excluding the accrual system.
Kindly take note that this article is not intended to be a comprehensive discussion on marital regimes.
Tineke van Rooyen is a lawyer at TVR LAW in Jeffreys Bay and can be contacted on 073 044 2155.
– WRITTEN BY TINEKE VAN ROOYEN OF TVR LAW, JEFFREYS BAY
