Lawbuntu Learn

Welcome to Lawbuntu Learn. Browse through the different legal topics to learn more about the law in South Africa.

Marriage

If you are getting married, congratulations!

Remember, marriage will have an affect on your estate…

Assets and liabilities will be important.

Be sure to understand the technicalities, and legal implications.

Download the Marriage Act

What?

A marriage is a legal agreement between 2 people.

This is different to a wedding, which is a celebration of your union.

You will normally sign a marriage contract.

This document is called an Antenuptial Contract (ANC), which literally means ‘a contract that is signed before marriage’. This contract is also known as a 'prenup'.

This is one of the most important documents you will ever sign, so be careful and make sure you understand the contract.

You don’t have to sign a contract!

If you get married without a contract, you will automatically be married in Community of Property. See below for more on what this means.

 

Types of Marriage

ICOP - In Community of Property

 

50%/50%

If you select this option, all assets (money, cars, properties, etc) and liabilities (debts, sureties, loans, etc.) belong to both parties equally.

‘Everything you own and everything you owe’

What does this mean?

It means all of the ‘things’ that you own, and all the things that you owe belong to the husband and wife equally.

This is known as your joint estate.

You have a right to the assets of your partner, and a responsibility for their debts.

How do you select in Community of Property?

By doing nothing.

Literally, if you do not sign a ‘prenup’ before you are married you will automatically be married In Community of Property.

 

OCOP - Out of Community of Property
Separate - your assets, his/her assets

There is no sharing of the assets or liabilities

The antenuptial contract you sign can be used to allocate assets to your spouse.

It can also be used to protect certain assets from debts.

With this contract, your estates will remain completely separate.

 

OCOP + ACCRUAL - Out of Community of Property with Accrual

 

Separate + Together
Your prior assets; his/her prior assets; and 50% after that.

Everything you own from before you get married remains yours.

Everything you earn after you get married belongs to both of you.

If you enter into a marriage contract and you do not wish to enter into the accrual system, accrual must be excluded in your marriage contract.

 

Other Types of Marriage
Other Types of Marriage
African/Customary

These traditional marriages are governed by the Customary Marriages Act.

Register your marriage within 3 months!

NB You must have your customary marriage registered to make it legal.

Register with Home Affairs or a designated traditional leader.

Similar to standard marriage with additional formalities (e.g. lobola)

Men can have many wives in customary marriage provided other wives consent.

Speak to your marriage officer and understand the legal implications.

 

Foreigners

As a foreigner you will need an official document from your country indicating your marital status.

Other than the above, your marriage will occur in terms of South African law and the standard steps.

A lawyer will have to notarise your marriage

 

Same Sex Couples

Under the Civil Union Act, South African law allows homosexual couples to get married.

How?

6 steps to getting married:
  1. Find someone you want to spend the rest of your life with.
  2. Consult with an official Marriage Officer (will perform ceremony and formalities)
  3. Checklist:
    1. ID book;
    2. Two witnesses;
    3. Notarised declaration (this document must be prepared by a lawyer);
    4. Antenuptial contract (if applicable);
    5. Divorce order (if applicable).
  4. Go to Home Affairs or have a wedding.
  5. Sign the register.
  6. You’re Married!

Where?

In South Africa, you can get married wherever you want.

But, technically, the ceremony should take place indoors.

Who?

Almost anyone can get married in South Africa.

You must be over the age of 18.

This applies to same sex couples too.

Not allowed to be married:
  • Minors
  • Mentally disabled/handicapped individuals
  • People related by blood; and
  • People who are already married (unless it is a customary marriage).

Don't rush into marriage, it has many legal implications!

Don’t give in to family or peer pressure, and be sure before you enter this legal agreement.

Why?

People get married for many different reasons. Here are some factors:

  • Love;
  • Estate;
  • Religion;
  • Tradition;
  • Social; and
  • Class.

Marriage is also a good way to join estates together.

A marriage can provide protection and security.

When?

Whenever you feel ready, as long as you are 18 years of age!

Not married? Don't want to be married?

There is less legal protection for partners who are not married, but also less responsibility.

If you are in a relationship but do not wish to be married, you should address this in your Last Will and Testament as your partner may not be able to claim from your estate if you die and haven’t included them as a beneficiary in your Will.

  • Click here to read more about estates.
  • Click here to download a free basic will.
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