Marriage and Matrimonial Property

 

 

Yes!!!! 
On 30 November 2006, South Africa made world headlines when it became the fifth country in the world (and the first in Africa) to legalise marriage between two people of the same sex under the Civil Union Act.
The Civil Union Act is the law that now provides for legal recognition of marriages and civil partnerships, collectively referred to as civil unions, between two persons regardless of their sexual orientation or gender identity.

Yes, it is possible to change your marital regime through a process known as a postnuptial agreement. However, this requires the consent of both spouses and a court application and it is beneficial to discuss this and work through an attorney to manage this process. 

A marriage ceremony can take place almost anywhere, as long as the legal part of the ceremony is conducted or repeated in a church or other building used for religious services or in a public office (i.e. a Government office) or in a private dwelling house.

Basically, as long as the signing of the register/marriage certificate is done indoors.

Absoloutely!

You need to have a frank discussion with a lawyer who can assist not only with the legal requirements but to give both parties some important and realistic advice and checks about how marraige will affect your future - Obtaining good legal advice before you get married can save you an enormous amount of stress and expense down the line, not only in the unfortunate case of a divorce. Remember that your marital status can affect future issues like your financial liability for debts incurred, or the division of assets in the case of a divorce.

1. Register your intent to marry at a Department of Home Affairs office. This should be done at least three months before the wedding date. 

2. Pay the required fee for the marriage certificate and other administrative costs. 

3. Choose a marriage officer, either from the Department of Home Affairs or a religious institution, to officiate the ceremony. 

4. Schedule a date for the ceremony and obtain a marriage license.

5. Invite witnesses to the ceremony; you need at least two and they must be over 16 years old and understand the language used during the ceremony. 

6. After the ceremony, your marriage officer will submit the marriage register to the Department of Home Affairs, and you’ll receive your marriage certificate. 

7. Consulting with legal professionals like VDM Attorneys or the relevant government authorities can help ensure that your wedding planning aligns with the legalities of marriage in South Africa.

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Matrimonial Property Regimes

In South Africa, the Matrimonial Property Act 88 of 1984 regulates how assets and liabilities are managed within different matrimonial regimes. Understanding these marriage regimes is essential for couples planning their marriage or dealing with its dissolution, whether through divorce or the death of a spouse.

Marriage and Matrimonial Property Regimes

Types of Marriage in South Africa

South African law recognises three main matrimonial property regimes:

  • Marriage in Community of Property
  • Marriage Out of Community of Property without Accrual
  • Marriage Out of Community of Property with Accrual

Each of these regimes carries unique implications for ownership, debt liability, and asset division.

Marriage in Community of Property

This is the default regime when no antenuptial contract (ANC) is signed before marriage. The couple’s separate estates are combined into a single joint estate.

Key Features:

  • Shared Ownership – All assets and debts acquired before and during the marriage are pooled.
  • Joint Responsibility – Both partners are equally liable for debts, even if only one incurred them.
  • Consent Required – Major financial decisions, such as selling property or taking out a bond, must be made jointly.

Equal Division on Divorce or Death – Regardless of who earned or owned more, the estate is split equally if the marriage ends.

Risks:

If one spouse becomes insolvent or enters into reckless debt, the entire joint estate is exposed. This lack of financial separation can pose a significant risk.

Marriage Out of Community of Property

To avoid the automatic application of the joint estate, couples must sign an antenuptial contract before the wedding. This contract keeps estates separate, and allows couples to choose whether to include or exclude the accrual system.

Without Accrual

Each spouse remains fully independent in terms of assets and liabilities—during and after the marriage.

Key Points:

No Shared Growth – Each spouse retains ownership of their property and leaves the marriage with what they brought in or acquired individually.

Debt Protection – One spouse cannot be held responsible for the other’s debts.

Potential Downside: This arrangement offers no compensation to a spouse who may have contributed in non-financial ways (e.g. child-rearing or household support) but did not accumulate personal assets.

With Accrual

A more balanced approach, this option allows each spouse to grow their own estate—but also share in the difference if the marriage ends.

How It Works:

  • During the marriage, assets remain separate.
  • At divorce or death, the growth (accrual) in each estate is calculated.
  • The spouse with the smaller accrual may claim half the difference.

Example:

  • Spouse A starts with R100,000, ends with R400,000 → R300,000 growth.
  • Spouse B starts with R200,000, ends with R300,000 → R100,000 growth.
  • Difference in accrual: R200,000. Spouse B may claim R100,000.
  • Customisation: Assets like inheritances or donations can be excluded from accrual, but this must be clearly specified in the ANC.
  • Considerations: The spouse owing the accrual amount may face liquidity issues—particularly if wealth is tied up in immovable property or business assets.

Antenuptial Contracts and Legal Requirements

An antenuptial contract must be:

  • Signed before marriage; and
  • Registered with the Deeds Office within three months.

This document allows couples to:

  • Choose between the accrual or no-accrual system;
  • Exclude specific assets from accrual;
  • Tailor the legal and financial framework of their marriage.

Foreign Marriages and the Domicile Rule

For South Africans marrying abroad, the property regime is determined by the domicile of the husband at the time of the marriage (i.e. his permanent place of residence). For example, if a South African marries a UK resident in Mauritius, English law may apply. This can have far-reaching consequences—especially during divorce or inheritance—so legal advice is strongly recommended beforehand.

Choosing the Right Regime

Before deciding, consider:

  • Your individual financial positions
  • Whether you own or plan to own a business
  • How you want assets divided if the marriage ends
  • Whether one spouse plans to take on caregiving or unpaid roles
  • Future inheritances or family property

There’s no one-size-fits-all answer. What matters is choosing a regime that protects your interests and aligns with your life plans.

VDM Attorneys – Legal Advice for Every Stage of Marriage

Marriage isn’t only a personal commitment—it’s a legal framework with lasting financial consequences. Whether you’re planning your wedding or reviewing your options ahead of a divorce, it’s essential to understand your rights and obligations.

VDM Attorneys offers trusted legal guidance on:

  • Drafting and registering antenuptial contracts
  • Structuring matrimonial property regimes to suit your goals
  • Advising on estate division during divorce or death

With the right legal partner, you can enter marriage with clarity—and protect your interests at every stage.

Contact us.