In most cases, couples tend to place all their focus on the Wedding ceremony and don’t invest their time into researching the various Matrimonial regimes that would perfectly suit their needs! So where do you start after saying I DO?
LEGISLATION AROUND MARRIAGES IN SA:
In SA, The Marriage Act of 1961 Governs the solemnization and registration of Marriages in SA. A Citizen can choose to get married in terms of 3 Laws:
1. The Matrimonial Property Act of 1984 (MPA): which sets out the Matrimonial consequence.
2. The Recognition of Customary Marriages Act of 1998: recognizes marriages under African Customary law and
3. The Civil Union Act of 2006: allows for Same sex marriages which are equivalent to marriages under the Marriage Act.
In accordance with the MPA: there are 3 types of Matrimonial Property Regimes:
1. MARRIAGES IN COMMUNITY OF PROPERTY
2. MARRIAGES OUT OF COMMUNITY OF PROPERTY WITHOUT ACCRUAL and
3. MARRIAGES OUT OF COMMUNITY OF PROPERTY WITH ACCRUAL.
Below is a brief overlook of the above mentioned regimes:
1.MARRIED IN COMMUNITY OF PROPERTY:
- most popular and cheapest matrimonial regime.
- the automatic regime If you choose to get married WITHOUT AN ANTENUPTIAL CONTRACT.
- the assets and liabilities of both Spouses form part of the joint estate.
- each spouse has an undivided half share of the estate.
2. MARRIAGE OUT OF COMMUNITY OF PROPERTY WITHOUT ACCRUAL.
Now, you probably sitting there asking yourself what is this Accrual term I see? Accrual is the gain/increase to which the assets/ wealth has shown over the duration of the marriage.
- if couples are married in accordance with the accrual system, each spouse has a right to the others property upon Divorce.
Please note: the accrual right only becomes enforceable upon divorce!!
Now back to explaining this regime:
- in this regime, each spouse keeps a separate estate and whatever assets and liabilities they individually had before the marriage form part of their separate estate.
- it is important to enter into and register an ANC that excludes Community of Property and profit and loss.
3. MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH ACCRUAL.
- exactly the same as the regime described above, except here the accrual applies.
- our law provides that, everyone entering into an ANC is automatically married with the accrual system.
- if spouses do not want the Accrual to apply, they must specifically exclude it in the ANC.
- In practice, this is the most ideal way to marry. When the accrual is included.
A spouse will be entitled to share in the growth of two estates at divorce.
All the above mentioned regimes have their own specific advantages and disadvantages. It is important to consult an Attorney/ Notary who will effectively explain the above mentioned.
Planning a wedding Is always amazing. But remember to always consider the legal aspects of marriages.