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– MARRIAGE LAWS IN SOUTH AFRICA.<\/p>\n
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They say Love is blind but in most instances marriage is an eye opener. It is common practice that couples focus so much on the marriage ceremony and completely neglect the implications of their chosen marriage regime and forget to make an informed decision regarding the marriage regime they are entering into. Therefore, it is very important to ensure that both parties wishing to marry fully understand the implications of the type of matrimonial property regime that they have chosen or they are about to enter into.<\/p>\n
In South Africa, there are three forms of matrimonial property systems available provided by the Matrimonial Property Act 88 of 1984, namely :
1. Marriage in Community of Property
2.Marriage Out of Community of Property without accrual
3. Marriage Out of Community of Property with accrual.<\/p>\n
1. Marriage In Community of Property<\/strong> Advantages of marriage in community of property Disadvantages of marriage in community of property 2. Marriage out of community of property without Accrual<\/strong> Advantages of Marriage out of community of property without Accrual Disadvantages of Marriage out of Community of property without accrual 3.Marriage out of community of property with accrual<\/strong> The term accrual is used to denote the net increase in value of a spouse’s estate since the date of marriage. In other words, what was yours before marriage remains yours, and what you have earned during the marriage belongs to both of you.<\/p>\n Advantaged of marriage out of community of property with accrual Disadvantages of marriage out of community of property with accrual 4.Can parties change their matrimonial property regime?<\/strong><\/p>\n In terms of section 21 of the Matrimonial Property Act , a husband and wife may , irrespective of when and how they were married jointly apply to High Court for leave to change their matrimonial property system if the following requirements are met: Should you require professional assistance with any issue relating to types of marriage, change of matrimonial regime and or divorce contact Lorraine Kapungu on +27 76 034 9094 or on lorraine@kapunguattorneys.com to arrange a consultation.<\/p>\n [\/et_pb_text][\/et_pb_column][\/et_pb_row][et_pb_row admin_label=”Project Image Area” _builder_version=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_image src=”http:\/\/kapunguattorneys.com\/wp-content\/uploads\/2022\/01\/business-05.jpg” show_bottom_space=”off” force_fullwidth=”on” align_tablet=”center” align_phone=”” align_last_edited=”on|desktop” _builder_version=”3.23″ custom_margin=”|||” custom_padding=”|||” animation_style=”slide” animation_direction=”right” animation_intensity_slide=”2%” border_width_all=”30px” border_color_all=”#ffffff” box_shadow_style=”preset2″ box_shadow_horizontal=”0px” box_shadow_vertical=”15px” box_shadow_blur=”60px” box_shadow_color=”rgba(29,61,71,0.2)”][\/et_pb_image][\/et_pb_column][\/et_pb_row][\/et_pb_section]<\/p>\n","protected":false},"excerpt":{"rendered":" MARRIAGE LAWS IN SOUTH AFRICA. – MARRIAGE LAWS IN SOUTH AFRICA. They say Love is blind but in most instances marriage is an eye opener. It is common practice that couples focus so much on the marriage ceremony and completely neglect the implications of their chosen marriage regime and forget to make an informed decision […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"on","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[1],"tags":[],"class_list":["post-86","post","type-post","status-publish","format-standard","hentry","category-kapungu-attorneys"],"_links":{"self":[{"href":"https:\/\/kapunguattorneys.com\/index.php?rest_route=\/wp\/v2\/posts\/86","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/kapunguattorneys.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/kapunguattorneys.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/kapunguattorneys.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/kapunguattorneys.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=86"}],"version-history":[{"count":2,"href":"https:\/\/kapunguattorneys.com\/index.php?rest_route=\/wp\/v2\/posts\/86\/revisions"}],"predecessor-version":[{"id":88,"href":"https:\/\/kapunguattorneys.com\/index.php?rest_route=\/wp\/v2\/posts\/86\/revisions\/88"}],"wp:attachment":[{"href":"https:\/\/kapunguattorneys.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=86"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/kapunguattorneys.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=86"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/kapunguattorneys.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=86"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
This system is the most popular although there are some flaws in this model. In this type of marriage, the spouses estates( asset and any liabilities) are joined together and each party has a right of disposal over the assets of the joint estate. Each spouse has an undivided or indivisible half share of the joint or communal estate. Although consent is required from the other party to alienate or encumber estate assets, written consent is only required in certain cases.<\/p>\n
1.No need to enter into a special contract
2. When you are the financially weaker spouse. You get to share in the assets of your financially stronger spouse.<\/p>\n
1. You are jointly liable for each other’s debt(which is problematic on insolvency)
2. When you are the economically stronger spouse you have to share your assets with your spouse.
3. Joint administration of the estate is rather complicated.
4.upon divorce , the assets of the joint estate as at date of divorce will be divided equally between the parties unless a spouse claims forfeiture and the court grants such forfeiture order.<\/p>\n
This form of marriage is concluded when parties entered into a valid antenuptial contract prior to their marriage that excludes community of property and profit and loss. Each party will keep their separate estate and whatever assets and liabilities they individually had before marriage form part of their separate estates. Assets and liabilities acquired by each during the marriage also falls within their separate estates. This system basically gives each spouse absolute independence of contractual capacity and protects each spouse’s estate against claims by the other spouse’s creditors.
This system may be recommended where both parties already have substantial estates or incomes and may also be appropriate in cases of second or further marriages.<\/p>\n
1. Each spouse keeps his\/ her own assets and is free to deal with his\/her estate as they like.
2. The financially stronger spouse does not have to share his\/her estate with the weaker spouse.<\/p>\n
1. The economically weaker spouse does not get to share in the estate of the stronger spouse even though such spouse has indirectly contributed to the estate. ( this is subject to judicial discretion and forfeiture of benefits)
2. This system is expensive in that the parties must pay for a notary and cost of registration of the ANC.<\/p>\n
In this system of marriage, a spouse will be entitled to share in the growth of the two estates upon divorce. Since a successful marriage is based on equality and is managed as a partnership, this model must surely be the most ideal system.
All assets that each party owns prior to the marriage can either be excluded or included in the accrual. Accrual is a way to ensure that both spouses in a marriage gain a fair share of the estate once the marriage comes to an end. The accrual system incorporates a calculation that is applied when the marriage is dissolved by divorce. The spouses will share the assets during the course of their marriage based on a particular calculation when the marriage is terminated.<\/p>\n
1. Spouses share the increase in their assets accumulated during the marriage and the economically weaker spouse benefits.
2. The spouses do not share their assets acquired before their marriage.
3. During the course of the marriage, each spouse manages his\/her estate at will.
4. Spouses are not liable for each other’s debt. All that they share is their net assets. Thus, if one spouse becomes insolvent, the other spouse is protected against creditors.<\/p>\n
1. The economically stronger spouse has to share the profits that he\/she made during the marriage.
2. One has to enter into an ANC in order for the accrual system to apply.
3. The calculation of accrual at the end of the marriage can be a bit complex.<\/p>\n
1. There must be sound reasons for the proposed change.
2.notice of intention to change must be given to the Registrar of Deeds, must be published in the Government Gazzette and 2 local newspapers
3. All creditors must be given sufficient notice
4. No person must be prejudiced by the proposed change.
5. Application must contain sufficient information about the parties’ assets and liabilities to enable the court to ascertain whether or not there are sound reasons for the proposed change and whether or not any particular person will be prejudiced by the change.<\/p>\n