Marriages create certain rights and duties for the husband and wife. In all marriages, couples have a legal duty to support each other. This means that they must look after any children, and the home, and provide the family with food and clothing, medical care and other ‘household necessities’. Either or both partners work to earn money.

All civil marriages are automatically in community of property unless the parties sign an ante-nuptial contract before the marriage (except African marriages before 1998, which were automatically out of community of property unless the partners clearly chose to marry in community of property).

MARRIAGES IN COMMUNITY OF PROPERTY

This is the automatic system of marriage. In other words, if you get married without signing any contract, you will automatically be married in community of property.

‘In community of property’ means that everything the couple own, and their debts, from before their marriage are put together in a joint estate. Everything they earn or buy and any debts incurred after their marriage are also part of this joint estate.

There is joint administration of the things the couple own. This means the husband and wife share in controlling their joint property. To protect each spouse, the other partner’s written permission is necessary for big things like buying or selling a house, signing credit agreements, withdrawing money from accounts in the other spouse’s name and so on.

If they get divorced the joint estate gets divided in half. One half belongs to the wife, the other to the husband. Any debts are also shared. The court does have the discretion to order that one spouse will not get their half share that they will be entitled to by granting an order of forfeiture of benefits or redistribution of the assets if, taking into account various factors, it believes it would be unfair for everything to be split equally.

In terms of the Matrimonial Property Act (No 88 of 1984), the marital power of a husband over his wife was scrapped. Now a woman married in community of property:

• Has equal rights to administer the joint estate
• Can enter into contracts without her husband’s permission
• Can sue or be sued in her own name

Both men and women must now say what their marital status is when they fill in forms.

MARRIAGES OUT OF COMMUNITY OF PROPERTY WITH AN ANTE-NUPTIAL CONTRACT

Before they marry two people can make an agreement called an ante-nuptial contract. Usually this agreement excludes (or cuts out) community of property. This means the husband and wife each own and control their own things – they have separate estates.

Under the Matrimonial Property Act of 1984 the accrual system automatically applies to their marriage, UNLESS they agree in their ante-nuptial contract that they do not want the accrual system.

‘Accrual’ means increase. The accrual system recognises that during a marriage the husband and wife keep on adding to their joint property. For example, They may add to their property by both working and bringing money into the marriage. Or one spouse may add indirectly by staying home and looking after the home and children so that they do not need to employ someone to do that. The accrual system allows both partners to benefit from the growth of either of their property during the marriage.

While the marriage lasts, the husband controls his own separate estate and the wife controls hers. But if they divorce or when one spouse dies, any increase in the value of both estates gets shared equally by the partners. If the couple chooses not to have the accrual system, in their divorce the partners keep their own things and are responsible for their own debts.

This is how the accrual system works:

• Certain things are excluded from the accrual system, such as inheritances and gifts.
• At the beginning of the marriage the property of each spouse is valued.
• During the marriage, each spouse controls and adds to their own property.
• When the marriage ends through death or divorce, the value of each spouse’s property before the marriage gets compared with the value at the end of the marriage. This shows the increase in each spouse’s property. (Inflation is taken into account.)
• Take the smaller increase in value away from the larger increase in value. Divide this amount in half. The spouse with the smaller increase in value has a claim against the other spouse for half of this difference so that they end up with the same accrual.

EXAMPLE OF ACCRUAL SYSTEM

Husband             Wife
R30 000             R4 0000       (Value at end of marriage)

R10 000             R2 000         (Value at beginning of marriage)

R20 000             R2 000        (Increase)

In this example, the husband’s estate has grown by R18 000 more than the wife’s estate during the marriage (i.e. R20 000 – R2 000). She has a claim against him for half of this difference i.e. R9 000 so that they each end up with an accrual of R11 000.

CIVIL MARRIAGES OF AFRICANS BEFORE 1988

Africans married by civil marriage ceremonies before 2 December 1988 were automatically married out of community of property with no accrual and the husband had marital power in terms of the Black Administration Act (38 of 1927). So, each partner kept their separate property and each partner owned any property they got during the marriage. But the husband had the marital power, so he managed both his property and his wife’s property. In 1988 the Marriage and Matrimonial Property Amendment Act (No 3 of 1988) changed the laws for civil marriages of Africans and made them the same as any other civil marriage. This meant that marital power was scrapped, the automatic marriage is in community of property unless couples sign an ante-nuptial contract, and out of community of property marriages have the accrual system unless couples choose not to have it.

Since 1998, the Recognition of Customary Marriages Act (No 120 of 1998) has recognised all African customary unions as legal marriages. All new marriages formed after the Act will automatically be in community of property unless the parties draw up an ante-nuptial contract. In terms of this Act the husband has no marital power. (See African customary marriages)

CHANGING THE WAY YOU WERE MARRIED

Even though the laws may have changed since you were married, your marriage is still governed by the way you were married and the rules of marriage for that kind of marriage at that time (except that marital power is automatically scrapped). Married people can apply to the High Court and ask the court to change their marriage from being in community of property to one out of community of property, or the other way around. Both husband and wife must apply together, they must prove that no other party will be disadvantaged, notice of the change has been given to all their creditors and they must give the court good reasons for wanting to change the way they were married.