Marriages in South Africa are governed by the Marriage Act of 1961 and the Matrimonial Property Act of 1984 will apply. In South African law there are 3 different types of marriages – in community of property, out of community of property with the accrual system, and out of community of property without the accrual system.
If you do not enter into an antenuptial contract prior to your marriage, you are automatically married in community of property. The effect of which means that the estates of the husband and wife is merged into “one” joint estate. This “one” joint estate consists of all the assets and liabilities of both spouses, even the liabilities prior to their marriage.
The main difference between a marriage in community of property and out of community of property (including / excluding the accrual system), is that with a marriage in community of property a joint estate is created by combining the estates of a husband and wife, and with a marriage out of community of property the estates of the husband and wife are completely separate. In the case of a joint estate, the husband and wife each possess an undivided half share in the estate.
In a marriage in community of property there are circumstances where the husband or wife cannot perform certain legal acts without the written consent of their spouse – for instance, a husband/wife cannot buy a house (immovable property) without the consent of the other spouse. The same principle applies if a couple are married according to the laws of another country.
It is also possible in South Africa to enter into marriage according to the religious requirements of the spouses, for example marriages according to Muslim or Hindu rites.
Men and woman can also be married by way of customary (indigenous) law. Such marriages are regulated by the Recognition of Customary Marriages Act of 1998.
Finally, same sex partners are able to marry in terms of the Civil Union Act of 2006.
People getting married in terms of the Recognition of Customary Marriages Act or Civil Union Act can get married in or out of community of property.
If you want your marriage to be out of community of property, you will have to enter into an antenuptial contract which is prepared by an attorney who is also a Notary. Antenuptial contracts must be signed before marriage and then be registered in the Deeds Office. If the Antenuptial Contract is not registered timeously after the signing thereof in the Deeds Office, then Antenuptial Contract is not valid or legally enforceable against third parties, in will however be valid and enforceable between the spouses.
Parties intending to marry are advised to marry out of community of property (with or without the accrual system).