If you are married, it is important to know your marital property regime because it will determine who is the owner of assets during the marriage and in the case of divorce or on the death of your partner.
Whether you were married in South Africa or in a foreign country, your property regime would typically be one of three basic types: entirely shared, entirely separate, or an arrangement that lies between the two – part shared, part separate.
The type of regime that applies depends on when, where and how you were married. If you were married in South Africa after 1984, the matter is relatively straightforward. But if your marriage dates from before then, or if you were married in another country, it may be more difficult to establish your legal position in South Africa.
Under the old apartheid government, black people were treated differently to other South Africans when it came to their marital property regime.
Couples who were not black and tied the knot before 1984 could be married in community of property (where their property became shared in a joint estate) or out of community of property (where they maintained separate estates). Couples choosing to be married out of community of property needed to draw up an antenuptial contract, also known as a prenuptial agreement, before the marriage ceremony. Otherwise, by default, they were regarded as being married in community of property.
For black people, the situation was somewhat different. The Black Administration Act required that civil marriages between black people were automatically out of community of property. This changed in 1988, when the relevant section in the Act was repealed, resulting in the default in-community-of-property applying to all civil marriages.
In 1984, the Matrimonial Property Act came into effect, introducing a third, more practical option for prospective married couples: this was the accrual system, which enables couples to have separate estates (out of community of property), yet share in property they accrue during their marriage.
The law has also changed on who can marry: the Recognition of Customary Marriages Act of 1998, the Civil Union Act of 2006 and recent amendments to the Marriage Act of 1961 have broadened the legal definition of marriage to recognise customary (traditional), gay and religious unions. The Matrimonial Property Act applies across all legally recognised marriages.
If you and your spouse were married in a foreign country, South African law will, in most cases, recognise your marriage according to the principle lex loci celebrationis, which refers to the law of the place where the marriage was solemnised. If either of you is a South African citizen, you can register your marriage at the Department of Home Affairs and obtain a local marriage certificate.
Regarding the property regime, the laws that apply are those of the country in which the husband was domiciled at the time of the marriage, according to the principle lex domicilii matrimonii. “Domicile” is defined in our law as the country where a person intends to settle or is settled indefinitely.
If the husband was domiciled in South Africa at the time of the marriage, even if the ceremony occurred elsewhere, the Matrimonial Property Act applies, and this means that, unless you can produce a valid antenuptial contract confirming otherwise, your marriage will be regarded as being in community of property.
Couples choosing to be married out of community of property have, pre- or post-1984, needed to draw up an antenuptial contract. This is an agreement by the couple to keep their estates separate, and it is done through a notary public – a specialised attorney, appointed by the High Court, who is authorised to witness signatures and authenticate documents. In the case of a post-1984 contract that includes accrual, the agreement needs to list the assets and liabilities of each person’s estate before marriage, which is necessary for the accrual calculation in the event of divorce or death.
The signed antenuptial agreement must then be registered at the Deeds Office, which is responsible for property-related contracts and legal documents.
Note that the marriage certificate, which you sign on the day of your marriage, does not state your marital property regime, and it gets registered at the Department of Home Affairs. Thus the two documents are filed at separate government institutions.
If you are not in possession of either or both of these documents, you can approach the Deeds Office or Department of Home Affairs to obtain a copy. Remember, if you are married in community of property, no antenuptial contract will have been registered at the Deeds Office.
