Formalities are regulated by the Marriage Act, no.25 of 1961 and apply with regard to all civil marriages concluded in the Republic of South Africa.
In principle marriage must be concluded between a man and a woman and it must be solemnised by a person who has been legally appointed or authorised to act as a marriage officer. In the case of minors under the age of 18, the consent of the Minister of Home Affairs is required, and over the age of 18 but under the age of 21, the consent of parents is required. Should the Minister and parents refuse consent, the High Court, as upper guardian, must be approached before a valid marriage can be entered into.
Since the commencement of the Matrimonial Property Act 88 on 1 November 1984, there have been three types of marital dispension available, namely :
In Community of Property
South Africa Common Law provides that a marriage without an antenuptial contract results in the parties being married in Community of Property. On marriage in Community of Property a joint estate is formed with the parties as joint administrators. Assets are equally shared and the parties are jointly and severally liable for all debts incurred by either party to the marriage. Each party has right of disposal over the assets of the joint estate. Although consent is required from the other party to alienate or encumber estate assets, written consent is only required in certain cases. In the final analysis there is financial equality (at times, to the detriment of the other party, for example in the case of insolvency), but no juristic equality (for example consent is theoretically required in order to trade with estate assets). Certain assets may be excluded from the joint estate, but this category is extremely limited.
Out of Community of Property
This form of marriage is where, by means of a notarial ante-nuptial contract, community of property and profit and loss is excluded. In this case there is, however, juristic equality in that each party has full right of disposal over his/her own assets (in other words without prior consent from the other party). Very basically, this regime is one which stands for the description of “What’s yours is yours and what’s mine is mine”. This model is most often chosen by parties who have substantial estates or incomes at the time of marriage.
Out of Community of Property with Accural
This form of marriage also excludes, by means of antenuptial contract, community of property and profit and loss, but provides for a system of asset sharing. This marriage system is a popular choice for couples who have not established themselves financially at the time of marriage. “Accural” implies the sharing, on termination of the marriage, of the profits generated during the marriage. Upon dissolution of the marriage, whether it be by death or divorce, the estate values are determined separately, and the larger estate values are determined separately, and then the larger estate must transfer half the net difference to the smaller estate.
We are frequently asked by clients whether, after living together for a certain time period, they are married by common law or not. The only correct answer to such a question is “no”. There is no assumption of marriage in South African law in consequence of cohabitation regardless of the duration of the relationship.
The question which inevitably follows our advise that “common law marriage” is not recognised is, “does any mechanism exist for the division of assets accumulated in a cohabitation situation?” If parties have cohabited and they can prove that a universal partnership exists between them, all property of such a partnership is deemed to be jointly owned by the parties and debts are the joint liability of the parties.
A universal partnership is very much like a business and to prove the existence of such a partnership it must be shown that:
Where there is no express agreement, a tacit agreement may be proved if it is found that it is more probable than not that such an agreement had been reached between the parties at the time of cohabitation.
Some of the other consequences of the absence of common law marriage in South African context are :
Because the existence of a universal partnership is somewhat difficult to prove, and it may not be a claim which you wish to have to make or defend, it is advisable to consider entering into a contract which spells out how property should be dealt with on termination of the relationship by death or otherwise. Such a contract would provide some certainty for cohabitees regarding the division of assets and settlements of liability on termination of the relationship.