There are various Acts which regulate marriages in South Africa and the legal effects of the marriages.
The first two Acts which I would like to discuss are the Marriage Act 25 of 1961 and the Matrimonial Property Act 88 of 1984, the latter of which commenced on the 1st of November 1984.
All civil marriages are regulated by the above Acts. Marriages in terms of these Acts will be referred to as civil marriages. These Acts make provision for three types of marriages:-
- Marriage In Community of Property
- Marriage Out of Community of Property without the Accrual system
- Marriage Out of Community of Property with the application of the Accrual system
In terms of these Acts the parties will automatically be described as married in community of property unless the parties entered into an Antenuptial Contract executed in the presence of a Notary Public before the marriage. It is also a requirement that this agreement must be registered in the Deeds Office within 3 months of the Notary Public executing it and 6 months if it was executed outside the borders of South Africa.
The parties can also in terms of Section 21 of the Matrimonial Property Act apply to the High Court to have their marriage regime changed.
The Black Administrations Act 48 of 1927 regulates Black Marriages. Section 22(6) governed Black marriages until the 2nd of December 1988 and provided that where no customary marriage existed, any marriage was considered to be a marriage Out of Community of Property. The parties could declare their marriage to be In Community of Property in the presence of a Magistrate, Commissioner or Marriage Officer at least one month prior to the celebration of their marriage. This Act did not regulate customary marriages.
On the 2nd of December 1988 this Section was repealed making all civil marriages regardless of race or colour, In Community of Property unless otherwise stipulated in an Antenuptial Contract.
The Transkei Marriage Act 21 of 1978 is also relevant. This Act was promulgated on the 2nd of July 1978 and provides that parties who married while domiciled in the former Transkei would be regarded as being married Out of Community of Property unless they entered into an Antenuptial Contract declaring their marriage to be In Community of Property prior to their marriage.
Both the Black Administration Act and the Transkei Marriage Act therefore provide that parties are married Out of Community of Property even if they did not make a declaration to the contrary.
The party to a marriage under the Black Administration Act and the Transkei Marriage Act can apply for the amendment of their marital regime in terms of Section 21(1) of the Matrimonial Property Act 88 of 1984.
On the 15th of November 2000 the Recognition of Customary Marriages Act 120 of 1998 was promulgated. These marriages are hereinafter referred to as Customary Marriages which are defined as the customs and traditions observed among the indigenous African people of South Africa which forms part of the culture of those people. This Act provides that the Customary Law Unions entered into prior to the 15th of November 2000 are recognised as a Marriage and recognised polygamous customary law marriages. Proof of marital status will be in the form of a Certificate from the Department of Home Affairs or an Antenuptial Contract. Failure to register a Customary Marriage does not invalidate the validity of the marriage.
A general discussion on Customary Marriages before the 15th of November 2000 is warranted. Section 7(1) of the Act qualifies the equal dignity, status and capacity of the spouses by providing that the proprietary consequences of the customary marriage entered into before the commencement of the Act continued to be governed by Customary Law. The Constitutional Court found that Section 7(1) of the Act was inconsistent with the Constitution and invalid to the extent that its provisions relate to monogamous customary marriages. The effect of this is that monogamous customary marriages entered into before the commencement date are now deemed to be In Community of Property. Chapter 3 and Section 18, 19, 20 and 24 of Chapter 4 of the Matrimonial Property Control Act apply in respect of all customary marriages which are In Community of Property. It was held further by the Court that until the Legislator provides otherwise the proprietary consequences of a polygamous customary marriage entered into before the commencement of the Act shall remain subject to Customary Law. Spouses therefore have full contractual capacity and no assistance is necessary for the acquisition, disposal of or alienation of immovable property.
After the 15th of November 2000 marriages entered into by parties who are not in a existing customary marriage and do not have an Antenuptial Contract will married In Community of Property. Needless to say that if they entered into an Antenuptial Contract they will be regarded as being married Out of Community of Property.
Any male who is already a party to a Customary Marriage and who wishes to enter into a further Customary Marriage with another woman must apply to Court for approval of a written contract which will regulate his future matrimonial property system. In considering this application the Court must :-
- When the marriage is In Community of Property or subject to the Accrual System:-
- Terminate the matrimonial property system which is applicable to the marriage
- Effect the division of the matrimonial property
- Ensure an equitable distribution of the property
- Take into account all the relevant circumstances of the family group.
The Court may also when considering the application:-
- allow further amendments to the terms of the contract
- grant the Order subject to any conditions it may deem fit
- refuse the application.
If the Court changes a matrimonial property system it must provide each spouse with a certified copy of the Order and must send copies to all Registrars of Deeds in the jurisdiction of the Court. The Court Order must be recorded as an Interdict against the Immovable Property. When a man enters into a third and further marriage, he must again apply to Court. In the event of a further Customary Marriage being entered into without the Consent of the Court be obtained, the marriage is likely to be regarded as a marriage Out of Community of Property.
Finally, the Civil Unions Act 17 of 2006, which came into operation on the 1st of December 2006, regulates the solemnisation and registration of Civil Unions by way of either a Marriage or a Civil Partnership and provides for the legal consequences thereof. The Civil Union is a voluntary union of two persons of the same sex who are both 18 years of age or older, which is solemnised as either a marriage or a Civil Partnership in accordance with the procedures prescribed in this Act, to the exclusion while it lasts of all others. The Marriage Act afforded heterosexual partners legal recognition of their relationship while the Civil Unions Act affords homosexual partners the same rights, status and benefits in line with our Constitution, which provides for equality before the law and prohibits unfair discrimination and the right to freedom of conscience and religious belief and opinion.
The union in terms of the Civil Union Act will be a union In Community of Property by default unless the parties entered into an Antenuptial Contract prior to their union, which must be registered within 3 months of the date of execution.
Conveyancer, Notary and Associate