Civil Union Act 17 of 2006

This Act came into enactment mainly to accommodate homosexual (same-sex) marriages, though it can also be concluded by persons in heterosexual relationships. This is the main difference between this Act and the Marriage Act. Also one should consider that the Civil Union Act makes no exception towards people who want to marry under the age of eighteen, they, unfortunately, have to wait till they turn years old. Besides the above-mentioned reasons the Civil Unions Act is very similar and enjoys the perks of the Marriage Act.

Recognition of Customary Marriages Act 120 of 1998 (RCMA)

Introduction & Purpose

Recognition of Customary Marriages Act 120 of 1998 (RCMA) came into operation on 15 November 2000 mainly due to the many inconsistencies and flaws of customary marriages with our Constitution. Many of the practices under customary law did not reflect the spirit upon which our Bill of Rights is built on. The introduction of court granted divorces (divorce was not recognized in terms of customary practices). The reconfiguring of the matrimonial property system. Lastly, the aim was to also improve the equality in the statuses of the spouses (this is due to patriarchy, the woman/wife acquired the low status of women which at times amounted to that of a minor child).

Historically

1. Spouses married in terms of customary law were not considered to be husband and wife and ultimately they, therefore, did not owe each other a duty of support.
2. Their children were considered to be illegitimate.
3. If the man married another woman by civil rites, the civil marriage extinguished the customary marriage, leading to the discarding of the first wife and her children.

 Definition of customary law & lobola

Section 1 of the RCMA defines customary marriage as ‘a marriage concluded in accordance with customary law’. The RCMA defines customary law as ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’. Also, the RCMA defines lobola as property, in cash or in-kind, whether known as lobola, bogadi, bohali, xuma,  ikhazi, etc or by any other name which a prospective husband or the head of his family undertakes to give to the head of the prospective wife’s family in consideration of a customary marriage’.

Requirements

Customary marriages are recognized as valid marriages in terms of the Recognition of Customary Marriages Act 120 of 1998 (“the Act”). After 15 November 2000, certain requirements were set out in the Act that must be complied with. The requirements are as follow:

• The marriage must be negotiated, entered into, or celebrated in accordance with customary law. This means that the marriage must be entered into in line with the traditions and customs of the parties.

• The payment of lobola is not a specific requirement in terms of the Act, but it is considered to be part of practice when concluding a customary marriage.
• An agreement that lobola will be delivered.

• The handing over of the prospective wife to the family group of the prospective husband or the prospective husband himself as the case may be.
• The parties who are getting married must be 18 years or older. If one or more of the parties are minors (below the age of 18 years), both his/her parents or legal guardian must give consent to the marriage.
• The parties must also be competent to marry each other, meaning that they must not be blood relatives. For example, a brother and sister are not allowed to marry each other.
• Both parties’ (prospective wife and prospective husband) consent is required for the marriage to be valid. A person who cannot give consent, such as a mentally insane person, will not be able to get married.
• The consent of the father or guardian of the prospective husband under certain circumstances.
• The consent of the guardian of the prospective wife.
• The marriage must be lawful.

• There is a duty on parties in a customary marriage to register the marriage within three months after the conclusion of the marriage at the Department of Home Affairs.
• If the registering officer is satisfied that a valid customary marriage has come into existence, the customary marriage will be registered and the parties will be provided with a registration certificate.
• This registration certificate will be proof of the existence of the customary marriage and may avoid disputes that might occur in the future.

MATRIMONIAL PROPERTY REGIMES

In accordance with the Matrimonial Property Act 88 of 1984, which came into operation on 1 November 1984, there are three forms of matrimonial property regimes in South Africa, namely:

Marriages in community of property

Marriage in the community of property is the cheapest because there is no need for the conclusion for an ante-nuptial contract and is the most popular form of all the matrimonial though deeply flawed and brings several problems in these modern times.

If you marry without an ante-nuptial contract, you will by default be married in a community of property. In this form of marriage, the spouses’ estates (what they own/assets and any debt/liabilities) are joined together and each has the right of disposal over the assets; they are equal concurrent managers of the joint estate. Each has an undivided or indivisible half share of the joint or communal estate.

Assets

All assets belonging to the spouses before getting married and all assets that they may accumulate during their marriage will fall into the joint or communal estate. There are a few exceptions, where certain assets may not be included in the joint estate. For example, if a will stipulates that inheritance should not form part of the joint estate, then that inheritance cannot become part of the joint estate.

Liabilities

All liabilities incurred by both spouses before and during the marriage are considered liabilities of the communal estate. So, if one spouse comes into the marriage with a lot of debt, his/her debt will then form part of the communal estate. Such debt may include contractual debt, maintenance payable to an ex-spouse from a previous marriage, and even maintenance payable to extramarital children. Each spouse has the capacity to bind the joint estate through their actions. For example, if a spouse has his/her own business and applies for an overdraft, and the business fails to pay the overdraft, a claim can be made against the joint estate. However, there are circumstances where a spouse must first obtain the consent of the other spouse before he/she can bind the communal estate. Where a spouse binds his/her separate estate, such as a car or business in his/her name, through debt, the creditor can lay claim against the private

estate of that spouse. If that spouse’s private estate has insufficient assets to satisfy the creditor’s claim, only then can the creditor lay claim against the communal estate.

Insolvency

One of the most devastating consequences of a marriage in a community of property is that when one spouse becomes insolvent (cannot pay his/her debts), both spouses will be declared insolvent because there is one communal estate. If there is a court order against either one of the spouses, the communal estate can be lost.

Advantages of marriage in community of property

• You don’t have to enter into an ante-nuptial contract before being able to get married.
• When you are the financially weaker spouse, you get to share in the assets of your spouse.

Disadvantages of marriage in community of property

• When you are the economically stronger spouse, you have to share your assets with your spouse.
• You are jointly liable for each other’s debts. This is particularly problematic on insolvency.
• The joint administration of the estate is rather complicated.
• When a marriage starts to fail, it can become difficult to obtain joint consent.

Suing for damages

Spouses married in a community of property cannot sue each other for damages. It would be pointless as money taken from the joint estate to pay the one spouse will simply fall back into the joint estate. There is an exception to this rule. A spouse can sue the other for nonfinancial loss arising out of bodily injuries caused by the other spouse. For example, if the wife is a passenger in a car driven by her husband, and because of his negligent driving they are involved in a car accident, she can sue him for her pain and suffering Damages that she recovers in respect of the nonfinancial

loss (damages paid to her for pain and suffering) will fall into her estate, outside the joint estate.

Couples may enter into one of two types of ANC:

• an ANC that excludes community of property, a community of profit and loss, and the accrual system; or
• an ANC that excludes community of property and community of profit and loss, but includes the accrual system.

The ‘accrual’ is the extent to which the husband and wife have become richer by the end of the marriage, in other words, the amount by which the spouses’ joint wealth has increased over the period of the marriage. When married according to the accrual system, each spouse acquires a certain right to the other’s property on divorce. Neither system is superior to the other. When married according to the accrual system, each spouse acquires a certain right to the other’s property on divorce. Neither system is superior to the other. In this system, when couples marry each spouse keeps a separate estate, and whatever assets and liabilities they individually had before the marriage form part of their separate estates. Furthermore, assets and liabilities acquired by each during the marriage also fall within their separate estates. This system gives each spouse absolute independence of contractual capacity and protects each spouse’s estate against claims by the other spouse’s creditors.

Marriages out of community of property without accrual

This matrimonial property regime involves an ante-nuptial contract (i.e. an agreement entered into before the marriage) where a community of property and profit and loss are excluded. There is no joining of the spouses’ estates into one joint estate. Each spouse has his/her separate estate, consisting of his/her premarital assets and debts, and all the assets and debts he/she acquires during the marriage. They each administer their separate estates and have full and exclusive control over their property. By marrying out of the community of property, the spouses choose to keep their estates separate and whatever assets and liabilities they individually had before the date of marriage will remain part of their separate estates. The spouses can, however, agree to include the accrual between them so that both spouses will share equally in the growth during the marriage of each other’s separate estates.

Advantages of marriage out of community of property without the accrual

• The financially stronger spouse does not have to share his/her estate with the weaker spouse. This is subject to judicial discretion and forfeiture of benefits.
• Each spouse keeps his/her assets and is free to deal with his/her estate as he/she likes.
• Spouses are generally not liable for each other’s debts. Thus, if one spouse becomes insolvent, creditors cannot touch the assets of the other spouse.

Disadvantages of marriage out of community of property without the accrual

• The economically weaker spouse, traditionally the woman, does not get to share in the estate of the stronger spouse, even though she may have indirectly contributed to the estate by running the household and looking after the children. This is subject to judicial discretion and forfeiture of benefits.
• An ANC has to be entered into to marry out of community of property. This costs money, and the parties must pay the fees of a notary and the costs of registration.

Marriages out of community of property with accrual

The term ‘accrual’ is used to denote the net increase in the value of a spouse’s estate since the date of marriage. In other words, what was yours before the marriage remains yours, and what you have earned during the marriage belongs to both of you. Because the right to share in accrual is exercisable only upon dissolution of the marriage, such a right is not transferable and cannot be attached by creditors during the subsistence of the marriage.

The following assets are not taken into account when determining the accrual (are not included in the net value of the estate):

• Any asset excluded from the accrual system under the ANC, as well as any other asset that the spouse acquired by virtue of his/her possession or former possession of such asset.
• Any inheritance, legacy, trust, or donation received by a spouse during the marriage from any third party, unless the spouses have agreed otherwise in their ANC or the testator/Trix or donor has stipulated otherwise.
• Any amount that accrued to a spouse by way of damages (e.g. slander), other than damages for patrimonial loss or the proceeds of an insurance policy in respect of a dread disease.
• Any donation between the spouses.

Upon the dissolution of the marriage by divorce, the net estate value (assets fewer liabilities less excluded assets and/or commencement values) of each estate is determined separately. The larger estate must then transfer half of the difference to the smaller estate. Putting it another way, the smaller estate must claim for an amount equal to half of the difference between the accruals of the respective estates. The right to share in the accrual only commences upon dissolution of the marriage by divorce.

Advantages of marriage out of community of property with the accrual

• The spouses share the increase in their assets accumulated during the marriage and the economically weaker spouse benefits.
• The spouses do not share their assets acquired before their marriage (but only if excluded in the ANC or included in the commencement values of the parties’ estates). The accrual system appeals to people who are already wealthy at the time of marriage.
• During the course of the marriage, each spouse manages his/her estate at will. There is no complex joint or equal administration.
• The spouses are not liable for each other’s debts. All that they share is their net assets. Thus, if one spouse becomes insolvent, the other spouse is protected against creditors.

Disadvantages of marriage out of community of property with the accrual

• The economically stronger spouse has to share the profits that he/she made during the marriage.
• One has to enter into an ANC for the accrual system to apply.
• The calculation of accrual at the end of the marriage can be a bit complex.

BIBLIOGRAPHY

LEGISLATION

South African Constitution

Marriage Act 25 of 1961

Civil Union Act 17 of 2006

Recognition of Customary Marriages Act 120 of 1998

Matrimonial Property Act 88 of 1984

Deeds Registries Act

Administration of Estates Act 66 of 1965

Children’s Act 38 of 2005

Mental Health Act 17 of 2002

BOOKS, JOURNALS, AND ARTICLES

NHLAPHO T, HIMONGA C, MAITHUFI HP, MNISI-WEEKS S, MOFOKENG L, NDIMA D.

2014. African Customary Law in South Africa Post-Apartheid and Living Law Perspectives.1^st Edition. Oxford. Cape Town.

 PRELLER B

The Matrimonial Property Systems.