Snaid & Morris

Marriage under South African Law

Three types of marriages are recognized under South African law:

  • Civil marriages,
  • Customary marriages, and
  • Civil unions

The solemnization and registration of these marriages are managed by the Department of Home Affairs.  They may be same sex marriages.

The most common ways in which to get married in SA is:

  • In Community of Property; and
  • Out of Community of Property (Antenuptial Contract)

In Community of Property means there is one Estate.  Everything that a spouse owns falls within that Estate.  This creates a serious problem as there is no protection against the creditors of a spouse and also if a party passes on.

There are two ways which one can enter into an Antenuptial Contract.  The first is with the inclusion of the accrual.  The second is with the exclusion of the accrual. 

Why enter into an Antenuptial Contract either with the exclusion of the accrual or with the inclusion of the accrual?

The first good reason is that there are two Estates and that upon death, both parties Estates are not frozen.  It is only the person that has passed on whose Estate gets frozen.

The second good reason is that if a spouse has his or her own business, then and in such event, it is a protection against Creditors as, even if the parties entered into an Antenuptial Contract with the accrual and there are amounts due to that party from the accrual, the accrual does not come into play until death or divorce.

Another reason for entering into an Antenuptial Contract is if one was married in community of property, and for example, the bank required a suretyship from one of the spouses, the other spouse would also be obliged to sign as surety.

In conclusion, before getting married, we invite you to contact our offices so that we can advise you fully on the benefits of which marriage will suit your needs.