You’ve finally asked your partner to marry you and the answer was “YES!” but have you done your research on the matrimonial property regimes in South Africa?
There are three matrimonial regimes in South Africa which are governed by the Matrimonial Property Act 88 of 1984, namely:
- Marriage in community of property
The “default” and most common system is marriage in community of property. All marriages are deemed to be in community of property if an antenuptial contract is not concluded before the marriage, which results in the joining of parties’ estates. On dissolution of the marriage, the estate will be divided equally between the parties.
- Marriage ‘out of community of property with the application of the accrual system
This system is based on the conclusion of a contractual agreement between the parties to a marriage – known as an antenuptial contract, which stipulates how the parties will deal with their assets during and after the subsistence of their marriage. The estates of both parties remain separate, which differs substantially from marriages in community of property. The accrual system, which applies upon dissolution of marriage, is a formula that is used to compare the estates of both parties to determine the larger accrual/ growth. The party with the larger accrual will have to pay a portion of their estate to the party whose estate showed a smaller accrual/growth.
- Marriage ‘out of community of property excluding the accrual system
This system is based on the same principles as the aforementioned marital regime, but without the application of the accrual formula upon dissolution of the marriage.
For purposes of this article, we will be discussing ante nuptial contracts (hereinafter referred to as ANC) and what you can do if your ANC is not registered within the stipulated registration period.
In order to have a valid ANC, you need to consider the following points:
- The contract must be legal and enforceable in terms of the law;
- It must be signed before a notary public who is authorised to register your ANC at the Deeds office of South Africa;
- Your ANC must be signed before the date of marriage, but it need not be registered before your wedding. It is the responsibility of the notary public to ensure that your ANC is registered at the Deeds office within 3 (three) months of execution thereof.
- Your Notary Public will provide your marriage officer with a certificate that states you have concluded an ANC before him/her.
However, what happens if your ANC is not registered within the stipulated 3 (three) month period?
Section 21 (1) of the Matrimonial Property Act provides that a married couple may jointly apply to court to amend their current matrimonial property regime. It will be required that a formal application be drafted and enrolled at the High Court of South Africa to change your marital regime because in the eyes of the law, you are married in community of property. Your application needs to contain good reason for not attending to the registration of the ANC, why you are requesting the change and that no other person will be prejudiced by the application to change your marital regime.
You will have to provide notice to your creditors and the Deeds office with an application to register a post nuptial contract and advertise your intention in the government gazette and local newspaper where you reside. The cost of the application varies but it is indeed more expensive than an ANC.
Amidst the excitement of an engagement and the build-up to the wedding day, the importance of an ANC is often overlooked. Therefore, it is imperative that both parties to the marriage are aware of the consequences and implications that flow from their elected matrimonial property regime.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).