In South Africa, there are several different types of marriage contracts available to couples. People can get married in terms of a civil marriage, civil union, customary marriage or religious marriage. Each type of marriage has its own set of rules and regulations, which can affect the legal rights and responsibilities of both spouses. In this blog post, we will explore the different types of marriages in South Africa.

Religious Marriage

These marriages are entered into between two people of the same faith/religion. These marriages are not recognised under South African law, but spouses in a religious marriage are afforded protection in certain instances. These instances include:

  • Upon the death of a spouse, the surviving spouse may approach Court for a maintenance order against the deceased spouse’s estate;
  • Should a spouse die without a will, the surviving spouse may still inheret in terms of the laws of intestate succession;
  • Spouses are still afforded protection against domestic violence.

These marriages are treated as a marriage out of community of property without the accrual system, as elaborated on below.

Customary Marriage

A customary marriage is a union between people that is negotiated and celebrated according to the customs and traditions of their culture. This type of marriage contract is recognised under the Recognition of Customary Marriages Act, which was passed in 1998. Under this act, a customary marriage will receive full legal protection and can be monogomous or polygamous.

In terms of property, a customary marriage is automatically considered to be a joint estate or “in community of property”, unless otherwise stipulated in an antenuptial contract. This means that all property and assets acquired during the course of the marriage belong equally to both spouses. However, it is important to note that this type of marriage does not automatically entitle either spouse to inherit from the other in the event of death.

In a polygamous marriage, the husband must apply to Court for permission to enter into such a marriage and the Court will require a written contract to be provided which states how the property in the marriages will be regulated in order to protect the property interests of existing and prospective spouses.

Civil Marriage 

A civil marriage is a union between a man and a woman. This type of marriage contract is recognised under the Marriage Act, which was passed in 1961. A civil marriage can be conducted by a magistrate, a minister of religion or a person licensed to perform marriages.

A civil marriage will automatically be in community of property, unless an antenuptial contract is entered into between the parties.

When an antenuptial contract is entered into, the marriage is considered to be out of community of property. An antenuptial contract is a legal agreement that two individuals enter into before they get married. This type of contract outlines how the couple’s assets will be divided in the event of a divorce. The contract can be tailored to suit the specific needs of the couple and can include provisions such as the division of property and spousal support.

An antenuptial contract can be either with accrual or without accrual. In a contract with accrual, both spouses agree to keep their assets separate during the course of the marriage. However, in the event of a divorce, the increase in the value of the spouse’s assets will be divided equally between them. In a contract without accrual, each spouse’s assets remain separate throughout the course of the marriage, and in the event of a divorce, each spouse keeps their own assets and property.

Civil Union

A civil union is entered into between two persons and may include persons of the same sex. These unions are also automatically considered to be in community f property, unless otherwise stipulated in terms of an antenuptial contract.

Universal partnerships

A universal partnership is not a form of marriage, but constitutes a legal agreement between two people who live together in a permanent, intimate relationship but who remain unmarried. This type of contract is recognised under South African law and provides the couple with many of the same legal rights and protections as a married couple.

Under a universal partnership contract, both partners share equally in the assets and liabilities of the partnership. This means that any property or assets acquired during the course of the partnership belong equally to both partners. In the event of a separation, the partners are entitled to an equal share of the assets. It is important to note that a universal partnership is specifically defined and would need to be proven, should one of the parties wish to claim the existence of such an arrangement. 

Notarial services from Pagel Schulenburg

We know how important it is to plan and decide on a marital regime before getting married. An antenuptial contract provides legal protection to the couple and determines their rights and responsibilities in the event of a divorce or separation. Before getting married, it is important for couples to consult with a legal professional to determine which type of marriage best suits their needs and how an antenuptial contract can protect them. Our notary has extensive experience in dealing with these matters sensitively and compassionately and will advise you before you start your married life.

Do you need assistance determining which marriage contract suits you best?

When planning a wedding, it is important to understand the different legal contracts and what they mean for you and your partner. We can help you with your decision. Email for assistance.