The Legal Consequences of Civil Marriage in South Africa: Choosing the Right Matrimonial Property System

Statistics show that most engagements occur in February—unsurprisingly so, given its association with Valentine’s Day. Based on the assumption that some of our readers, clients, friends, and family members followed this trend this year—and for future reference—we wish to provide insight into the different ways to get married under South African law and the legal consequences of each matrimonial property system, which can have life-changing implications for spouses.

This article is for informational purposes only and does not constitute legal advice in any way, manner, or form. It is intended solely to provide a general guideline on key factors to consider regarding the subject matter. The information contained herein reflects the legal position as of the date of publication. However, readers should note that the law is constantly evolving and subject to interpretation. As such, other legal practitioners may hold different views from those expressed in this article.

Matrimonial Property Systems in South Africa

In South Africa, there are three (3) matrimonial property systems applicable to civil marriages:

• In community of property – the default system, which does not require an antenuptial contract (ANC).

• Out of community of property without the accrual system.

• Out of community of property with the accrual system.

The latter two options require either:

• Concluding an Antenuptial Contract (ANC) before the marriage is officiated, or

• Entering into a Postnuptial Contract with the leave of the High Court after the marriage is officiated.

Marriage in Community of Property

Being married in community of property means that the separate estates of both spouses are merged into a joint estateimmediately upon marriage. This means:

• Both parties share equally in all assets and liabilities acquired or incurred before and during the marriage.

• One spouse cannot make significant financial decisions without the consent of the other, including selling property or applying for credit.

From a commercial and financial perspective, we firmly believe that this system is outdated and unsuitable for a modern economy. It prevents spouses from taking financial risks independently, putting material assets (such as the family home) at risk. Accordingly, we strongly advise against getting married in community of property without first considering an Antenuptial Contract.

Marriage Out of Community of Property Without the Accrual System

To be married out of community of property—whether with or without accrual—an Antenuptial Contract (ANC) must be signed before the marriage. Failing this, the spouses would need to enter into a Postnuptial Contract with the High Court’s approval, a costly and complex process requiring notice to creditors and co-owners of assets.

Under this system:

• Each spouse retains full ownership of their assets and liabilities before and during the marriage.

• There is no sharing of assets or debts between spouses.

  
  

Important Legal Update – October 2023 Constitutional Court Ruling

A recent Constitutional Court ruling in October 2023 has significantly affected marriages where spouses elected to exclude accrual. The ruling now allows spouses to claim a redistribution of assets upon divorce, even if the accrual system was originally excluded.

Given this legal development, we strongly recommend that couples rather elect an accrual system and carefully exclude certain assets in the ANC (such as immovable property, pensions, or investments) rather than risk a redistribution claim upon divorce.

Marriage Out of Community of Property With the Accrual System

This system allows spouses to:

• Remain financially independent during the marriage.

• Protect personal assets and liabilities accumulated before marriage.

• Share in the growth of each other’s estates during the marriage, subject to specific exclusions set out in the ANC.

Upon divorce or death, an accrual calculation determines the growth of each spouse’s estate, and the spouse with the smaller estate may claim a portion of the difference.

To ensure an accurate accrual calculation, spouses should explicitly exclude material assets acquired before marriage, such as property, investments, and pensions, in the ANC.

Our recommendation, almost without exception, is that couples should opt for marriage out of community of property with accrual and carefully structure their ANC to protect pre-marital assets.

Need Assistance?

If you are engaged and require assistance in drafting an Antenuptial Contract (ANC), please do not hesitate to contact our office. Proper planning can safeguard your financial future.