|Printed on 27 Mar 2017 | 16:33:20|
The South African population comprises of indigenous, religious as well as westernized groups. The marriages entered into by persons may vary from one group to another. You will find certain indigenous entities who may wish to enter into a marriage which will be governed by their tradition or culture, for example our indigenous groups. Others may prefer to enter into a marriage relationship which will be governed by their religion, such as Hindus and Muslims and then there will be those who would prefer the more common marriage being the so called civil or church marriages. There are also those who are joined in civil unions. For purposes of a property transaction, it is important to identify the marriage arrangement of the parties concerned and also how the said relationship will impact on a transaction. For example, can one spouse buy or sell without the written consent of the other spouse? Or, does the law actually acknowledge a particular marriage relationship? To answer these questions we provide a summary of the various marriages and the matrimonial consequences. 1. CIVIL MARRIAGES The Marriages Act 25 of 1961 governs the civil unions between spouses. This particular Act provides legislation on the requirements of a lawful marriage and does not govern marriages by Muslim rites, Hindu rites or Customary Unions. A marriage certificate issued by the licensed Marriage Officer on the date of marriage or an electronically printed certificate issued by the Department of Home Affairs is sufficient proof that a civil marriage exists. The Matrimonial Property Act 88 of 1984 provides legislation on matrimonial property law and matters connected thereto. Chapter 1 of the Act specifically deals with the accrual system in marriages that are out of community of property. The accrual system is only applicable if parties entered into an antenuptial contract prior to date of marriage, which contract is registered in the Deeds Registry within three (3) months of date of execution. The accrual system shall automatically apply unless specifically excluded in terms of the antenuptial contract. A registered antenuptial contract is sufficient proof that the civil marriage is out of community of property. If the parties did not enter into an antenuptial contract, then the marriage is automatically in community of property. Chapter III of the same Act governs marriages that are in community of property. In terms of Section 15(2) one spouse may not, without the written consent of the other spouse alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate. A spouse may also not enter into any contract for the alienation, mortgaging, burdening with a servitude, or conferring of any other real right in immovable property forming part of the joint estate. It is therefore essential that both spouses sign an agreement of sale to sell an immovable property and both spouses consent where the purchaser or mortgagor intends to mortgage the property. It is also important to note that the Marriages Act of 1961 did not apply to indigenous people. Civil marriages by black persons were governed by Section 22(6) of the Black Administrations Act 38 of 1927, until the section was repealed in 1988. Section 22(6) of the Act made provision for the matrimonial system that will govern the marriage. As at the date of marriage the parties had to elect whether community of property and of profit and loss was included or excluded. If the parties wished to be married in community of property this had to be specifically specified otherwise the marriage would automatically be one out of community of property. With the amendment of the Matrimonial Property Act 88 of 1984, black civil marriages were brought in line with civil marriages recognized under the Marriages Act of 1961. Effective from 2 December 1988 the consequences that flow from the Matrimonial Property Act of 1984, were extended to black persons who entered into a civil marriage. The parties are now required, since the amendment required to enter into an antenuptial contract, if they intend their marriage to be one out of community of property. 2. MARRIAGE BY HINDU RITES There is no automatic legal recognition of Hindu marriages in terms of The Marriages Act 1961. The marriage by Hindu rites is not governed by the legal consequences that flow from that of a civil marriage. The marriage would be governed by the tenets of the Hindu faith and not by civil law. The only way to enforce the legal consequences of the marriage in terms of the Marriages Act would be to register a civil marriage along with the Hindu marriage. The Act provides for the recognition of a Hindu marriage when conducted by a person who is registered in terms of the Marriages Act and who is in a position to perform a civil marriage in tandem with the customary marriage and to issue the parties with a marriage certificate in terms of the Marriage Act. It is the civil union that is then recognized and not the religious marriage. If a party to a property transaction advise that they are married by Hindu rites, then it is imperative to ascertain if the marriage has been civilly registered civil in which event the consequences of a civil marriage follow. If however the parties are married by Hindu rites, but no civil marriage is registered, then for purposes of a property transaction the particular party is regarded as unmarried. One may refer to him / her as being married by Hindu rites, but the consequences will be those equivalent to an unmarried person. 3. MARRIAGE BY MUSLIM RITES Similarly, Islamic marriages or marriages by Muslim rites are not recognized in terms of the legal consequences which flow from a civil marriage. However, there have been a series of cases since the adoption of the Constitution which have altered the proprietary consequences of an Islamic union. Among others it is found that an Islamic marriage gives rise to a duty to support and further that a spouse in an Islamic marriage is entitled to be regarded as a spouse for the purposes of Intestate Succession. The South African Law Commission has prepared a draft Islamic Marriages Bill, but same has not been passed. 4. CUSTOMARY MARRIAGES The Recognition of Customary Marriages Act 120 of 1998 came into operation on 15 November 2000. The purpose of the Act is to give recognition to customary marriages which are concluded in terms of the customs and traditions observed among indigenous population groups in South Africa. Before commencement of the Act: The validity and proprietary consequences of a customary marriage, entered into prior to the commencement of the Act are determined in accordance with customary law. Naturally in a Country as diverse as ours the different customs of different ethnic groups, are the yardstick by which the validity or otherwise of a customary marriage is determined. Both spouses have full capacity to act and neither spouse requires assistance to acquire or dispose of immovable property. Customary marriages entered into before the commencement of the Act had to be registered with the registering officer of the Department of Home Affairs within 12 months of the marriage having been entered into. However, non-registration did not affect the validity of the marriage. After commencement of the Act: All customary marriages that were recognized as marriages under customary law before the Act came into operation and still exist; or which were concluded after the commencement of the Act and comply with the legal requirements, are for all purposes regarded as marriages. The legal requirements for a customary marriage are that the prospective spouses must both be above the age of 18 years, must both consent to be married to each other under customary law and the marriage must be negotiated and entered into or celebrated in accordance with customary law. The effect of the Act is that a wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity, including the capacity to acquire assets and to dispose of them and to enter into contracts. In terms of Section 7 of the Act, a marriage entered into after the commencement of this Act where the spouse is not a partner in any other existing customary marriage, and where the parties have not entered into an antenuptial contract, the marriage is regarded as being in community of property and of profit and loss. Similarly, if a marriage is entered into after the commencement of the Act in which the spouse is not a partner in any other existing customary marriage and the parties have entered into an antenuptial contract, then the marriage is that of out of community of property. If however, a husband wishes to enter into a further customary marriage after the commencement of the Act, then he must apply to the Court to approve a written contract which will regulate the future property rights of all parties concerned. Spouses in a customary marriage may enter into a marriage which is governed by the Marriages Act of 1961, that is a civil marriage, but only if neither of them is a spouse in a subsisting customary marriage. 5. CIVIL UNIONS AND CIVIL PARTNERSHIPS The Civil Unions Act 17 of 2006 came into operation on the 1st December 2006 and the purpose of the Act is to regulate the solemnization of civil unions, either by way of a marriage or a civil partnership. With the coming into effect of the Act, same-sex couples now enjoy the status and benefits coupled with the responsibilities that marriage accords to opposite-sex couples. A person may only be a partner or spouse in one marriage or civil partnership at any given time and whilst in a civil union, may not conclude a marriage under the Marriages Act of 1961 or the Recognition of Customary Marriages Act of 1998. The legal consequences of a civil union are similar to that of civil marriages governed by the Marriages Act. Therefore, in line with the Matrimonial Property Act, a civil union is one in community of property unless the partners entered into an antenuptial contract prior to date of solemnization of the union, which contract must then be registered timeously in the relevant Deeds Registry. In conclusion, it is important to identify if a marriage arrangement is recognized by our laws or not. Once one has established the marital status the legal consequences are then either governed by the Matrimonial Property Act which inter alia stipulates that marriages are either in community of property or out of community of property, or the custom of the particular indigenous or religious group.
Written by: Karen Britz