Various Marital Property Regimes
Various Marital Property Regimes
Article Provided by Leanne Jooste, B Law Inc. Attorneys
In South Africa, there are various marital property regimes, and it is important to understand the patrimonial consequences of each regime and how it affects property ownership.
Marriage in community of property
The married couple has a joint estate, meaning that all assets and liabilities are joined together in one estate. Any properties bought or sold will be registered in both spouses' names and both spouses will need to sign the offer to purchase and the property transfer documentation.
Marriage out of community of property including the accrual system or excluding the accrual system
A couple will sign an antenuptial contract prior to getting married which will be registered in the Deeds Registry, subject to the accrual system or with the exclusion of the accrual system. Spouses can purchase properties either on their own or in both of their names. Spouses do not have to co-sign the offer to purchase and the property transfer documentation unless they are purchasing the property together.
Customary law (traditional) marriages
All monogamous (only one spouse) customary marriages entered into before or after the coming into operation of the Recognition of Customary Marriages Act 120 of 1998 is automatically deemed marriages in community of property unless an antenuptial contract was entered into and registered at the Deeds Registry. Polygamous (more than one spouse) customary marriages are governed by Court Order or customary law and deemed marriage out of community of property.
The couple has to register the marriage at Home Affairs, however, non-registration of a customary marriage at Home Affairs does not invalidate such a marriage. From the property law perspective, it should always be insisted upon to obtain proof or registration of the marriage to prove that a valid marriage subsists. Alternatively, an affidavit must be provided that the person is unmarried and that he or she never entered into any negotiations, in terms of the customs and usages of the Indigenous people of South Africa, resulting in a marriage.
Civil Unions Marriages
Civil unions are recognized in South Africa under the Civil Union Act. Civil unions can be formed by opposite-sex couples and by same-sex couples, and have the same rights, responsibilities, and legal consequences as marriages under the Marriage Act.
Foreign Marriages
If a couple is married according to the law of any other country than South Africa, then both spouses need to sign the offer to purchase and the property transfer documentation.
Muslim or Hindu Rites Marriages
As of 1 May 2014, an Imam, who has been duly registered as a marriage officer in terms of the Marriage Act, may now solemnize a Muslim marriage. The Proprietary consequence of a Muslim marriage so solemnized, will now be regarded as a civil marriage in terms of the Marriage Act. This means that such a marriage will be in community of property, unless the spouses have entered into an antenuptial contract excluding the community of property regime, with or without the inclusion of the accrual system. This does however NOT mean that all Muslim marriages are now valid. Muslim marriages not solemnized before a registered Imam will still be regarded as "unmarried."
De Lucia Group has been servicing the property industry for over 45 years. Contact us to ensure you get the best advice for all your property-related queries. Michael De Lucia - michaeldl@delucia.co.za
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The information contained herein is not intended to constitute advice and shall only be relied upon by you at your own risk. De Lucia Group does not guarantee the accuracy or completeness of any information posted in this newsletter or otherwise. Any information relied upon by you should be independently verified for accuracy. De Lucia Group reserves the right to change the content distributed or published without prior notice.
15 Jul 2022
Author De Lucia Group