What are the different types of marriage contracts in South Africa?

South Africa recognises several types of marriages, each with distinct legal implications. Choosing the right type of marriage contract is crucial as it determines the legal rights and responsibilities of both spouses. Below, we explore the different types of marriages in South Africa.

Civil Marriage

What is a Civil Marriage?

A civil marriage is a legally recognised union between a man and a woman, regulated by the Marriage Act of 1961. This type of marriage is the most common form of legal marriage in South Africa and is conducted by a licensed marriage officer, such as a magistrate or a religious official authorised to perform marriages.

Civil marriages provide full legal protection to both spouses, ensuring that they have equal rights and responsibilities within the marriage. They must be officially registered with the Department of Home Affairs to be legally valid. A civil marriage can only be dissolved through a legal divorce process.

Who Can Enter into a Civil Marriage?

To enter into a civil marriage in South Africa, both parties must meet the following requirements:

• Both individuals must be at least 18 years old. If one or both are younger, parental consent is required, and special approval from the Minister of Home Affairs may also be necessary.
• Both parties must give free and informed consent to the marriage.
• The couple cannot be closely related by blood (e.g., siblings or direct relatives).
• A person already married in a civil marriage cannot enter into another marriage while still legally married, as civil marriages are strictly monogamous.

Where and How is a Civil Marriage Conducted?

A civil marriage can be conducted in a public space such as a magistrate’s office, a religious institution, or any other venue where a marriage officer is legally permitted to officiate. The ceremony must take place in the presence of at least two witnesses and must comply with the legal requirements of the Marriage Act.

Once the ceremony is completed, the couple and the witnesses must sign a marriage register, after which a marriage certificate is issued as proof of the legal union.

Property and Marriage Contracts

One of the most critical aspects of a civil marriage is how assets and liabilities are managed within the union. South African law provides different types of marriage agreements that couples can choose from, each with different financial and legal implications.

What Happens if No Marriage Contract is Signed?

If a couple does not sign a marriage contract before getting married, the marriage will automatically be classified as in community of property. This means that all assets and debts acquired before and during the marriage are shared equally between both spouses. While this arrangement can foster financial equality, it also means that one spouse can be held responsible for the debts incurred by the other.

Different Types of Marriage Agreements for Civil Marriages

Couples who want more financial independence and protection may choose to sign an antenuptial contract before marriage. This contract is legally binding and must be registered with a notary.

1. Out of Community of Property with Accrual

This type of marriage contract allows each spouse to keep the assets they owned before the marriage as their own. However, any assets acquired during the marriage are shared equally upon divorce or death.

Example: If a husband owned a house before the marriage, that house remains solely his. However, if the couple buys a new house together during the marriage, both spouses have an equal claim to it.

This arrangement provides financial independence while ensuring that both partners benefit from assets accumulated during the marriage.

2. Out of Community of Property Without Accrual

Under this agreement, each spouse maintains complete ownership of their individual assets both before and during the marriage. There is no sharing of assets, even those acquired during the marriage. In the event of a divorce, each party leaves the marriage with only what they personally own.

Example: If a wife owns a business before getting married and continues to build it during the marriage, her spouse has no legal claim to the business or its profits.

This arrangement is often chosen by individuals who want to maintain strict financial independence and protect personal wealth or family inheritances.

Frequently Asked Questions About Civil Marriages

Is a Civil Marriage the Same as a Civil Union?

No, a civil marriage is specifically a union between a man and a woman, governed by the Marriage Act of 1961. A civil union, on the other hand, is regulated by the Civil Union Act of 2006 and allows for same-sex marriages and partnerships.

Can I Change My Marriage Contract After Getting Married?

Yes, but it requires a legal process. Couples who are married in community of property can apply to the High Court to change their marital contract. However, this process is costly and time-consuming, so it is strongly recommended that couples carefully consider their options before getting married.

What Happens if One Spouse Passes Away in a Civil Marriage?

The surviving spouse has full legal rights under South African inheritance laws. If there is no will, the surviving spouse will inherit under the laws of intestate succession. If there is a will, the spouse will inherit according to its terms.

Choosing the Right Marriage Contract

Choosing the right type of marriage contract is a significant decision that can impact both spouses financially and legally. Couples should carefully assess their financial goals, future plans, and potential risks before deciding on a marriage contract. Consulting a legal professional can help ensure that both parties fully understand their rights and obligations before entering into marriage.

Customary Marriage

What is a Customary Marriage?

A customary marriage is a legally recognised union conducted according to the traditions and customs of a specific cultural or ethnic group in South Africa. These marriages are protected under the Recognition of Customary Marriages Act of 1998, which grants them the same legal standing as civil marriages.

Customary marriages differ from civil marriages in several ways. Unlike civil marriages, which are strictly monogamous, customary marriages can be either monogamous or polygamous. Additionally, they are often accompanied by traditional negotiations, ceremonies, and rituals, which vary across cultural groups.

What Are the Requirements for a Valid Customary Marriage?

For a customary marriage to be legally recognised, it must meet the following criteria:

• Both parties must be 18 years or older. If one or both parties are minors, parental or guardian consent is required.
• Both parties must consent to the marriage. Forced marriages, even if conducted under cultural traditions, are not legally valid.
• The marriage must be negotiated and celebrated in accordance with the relevant customs and traditions. This may include lobola (bride price), family negotiations, and a formal wedding ceremony.
• The marriage must be registered with the Department of Home Affairs within three months of the ceremony. However, failing to register does not automatically make the marriage invalid, though it may lead to complications in proving the marriage in legal matters.

Legal Aspects of Customary Marriages

By default, a customary marriage is considered in community of property, meaning all assets, income, and debts acquired before and during the marriage are shared equally between spouses. This arrangement ensures that both spouses have equal financial rights and responsibilities.

However, couples can choose a different type of marriage agreement by signing an antenuptial contract before the marriage is concluded. This allows them to opt for:

• Out of community of property with accrual: Each spouse keeps the assets they owned before the marriage, but any assets acquired during the marriage are shared upon divorce or death.
• Out of community of property without accrual: Each spouse maintains full ownership of their individual assets both before and during the marriage.

How Does a Customary Marriage Affect Inheritance?

In the past, women in customary marriages faced challenges in inheriting property upon the death of their spouses. However, under South African law today, surviving spouses in a customary marriage have equal inheritance rights, even if the deceased did not leave a will.

Polygamous Customary Marriages

One key feature of customary marriages is that they can be polygamous, meaning a man can have multiple wives. However, this is subject to legal regulation:

• A husband wishing to enter into a second or subsequent customary marriage must apply to the High Court for approval.
• He must submit a contract specifying how property and assets will be divided among his spouses.
• The court must ensure that the property interests of existing and prospective spouses are protected.

Example: If a man with one wife wishes to marry a second wife under customary law, he must draft a contract detailing how his assets—such as his home, vehicles, or business—will be shared among all his wives. The court will then review and approve this contract before the marriage is legally recognised.

Challenges and Considerations

Despite legal recognition, some customary marriages remain unregistered, which can lead to complications when proving marital status in legal matters such as divorce, inheritance, and property disputes. Couples in customary marriages are advised to ensure their marriage is formally registered with the Department of Home Affairs.

Civil Union

What is a Civil Union?

A civil union is a legally recognised relationship available to both same-sex and opposite-sex couples under the Civil Union Act of 2006. This law allows couples to formalise their relationship with the same legal protections as a civil marriage.

Who Can Enter into a Civil Union?

To enter into a civil union, the following requirements must be met:

• Both partners must be at least 18 years old.
• Both partners must provide free and informed consent.
• The couple cannot be closely related by blood.
• A person already married in a civil marriage or an existing civil union cannot enter into another civil union unless their previous union has been legally dissolved.

Marriage Contracts in Civil Unions

Like civil marriages, civil unions are automatically classified as in community of property unless the couple signs an antenuptial contract before the union is formalised. This means that, by default, both partners share ownership of all assets and debts acquired during the relationship.

What Are the Benefits of a Civil Union?

Entering into a civil union grants spouses various legal rights, including:

• Inheritance rights, ensuring that a surviving partner can inherit their spouse’s assets.
• Medical decision-making rights, allowing partners to make critical healthcare decisions for one another.
• Recognition of the relationship for immigration and residency purposes.
• Equal treatment in tax and financial matters.

Common Questions About Civil Unions

Is a Civil Union the Same as a Civil Marriage?

While both offer similar legal protections, a civil union is distinct from a civil marriage. The main difference is that civil unions specifically provide a legal framework for same-sex couples, although opposite-sex couples can also enter into them.

Can a Civil Union Be Converted into a Civil Marriage?

No, a civil union cannot automatically be converted into a civil marriage. If a couple wishes to change their legal status, they must dissolve the civil union and enter into a new civil marriage.

Religious Marriage

Are Religious Marriages Recognised Under South African Law?

Religious marriages—such as those conducted under Islamic, Hindu, or Jewish traditions—are not fully recognised under South African law unless they comply with the Marriage Act. This means that while the religious ceremony is valid in the eyes of the faith community, it may not automatically grant spouses the same legal rights as a civil or customary marriage.

Legal Protections for Religious Marriages

Despite the lack of full legal recognition, spouses in religious marriages are granted certain legal protections, including:

• Maintenance rights: A surviving spouse can claim maintenance from the deceased spouse’s estate.
• Inheritance rights: If a spouse dies without a will, the surviving spouse may still inherit under intestate succession laws.
• Domestic violence protection: Spouses in religious marriages are protected under the Domestic Violence Act.

How Can Couples Ensure Legal Protection?

To gain full legal recognition, couples in religious marriages are encouraged to register their marriage as a civil marriage or civil union. Alternatively, they may draft a cohabitation agreement or will to protect their financial interests.

Universal Partnerships

What is a Universal Partnership?

A universal partnership is a legally recognised relationship between two individuals who live together in a committed, long-term relationship without getting married. Unlike civil marriages, civil unions, or customary marriages, a universal partnership does not require official registration. Instead, it is based on mutual agreement and conduct.

Universal partnerships are commonly used by couples who choose not to marry for personal, cultural, or financial reasons but still want to establish legal protection for their shared assets and contributions.

How is a Universal Partnership Formed?

A universal partnership is formed when two people:

• Live together in a committed and stable relationship.
• Agree (either explicitly or implicitly) to contribute financially or in other ways to their shared household and lifestyle.
• Have a mutual intention to benefit from the partnership financially or otherwise.

Unlike formal marriages, a universal partnership does not require a wedding ceremony or legal registration. However, its existence must be proven if a dispute arises.

Legal Implications of a Universal Partnership

Because a universal partnership is not automatically recognised as a marriage, proving its existence can be complex. If a dispute arises—such as during a separation or in the event of one partner’s death—the burden of proof falls on the partner claiming the existence of the partnership.

Partners in a universal partnership may share assets and liabilities, but they must provide evidence of their contributions and agreements, which can include:

• Financial contributions to shared expenses, such as rent or mortgage payments.
• Joint ownership of property or vehicles.
• Shared bank accounts or investments.
• Mutual financial support, such as one partner contributing to the other’s business or career development.

Challenges in Proving a Universal Partnership

Since a universal partnership is based on mutual agreement rather than formal registration, one of the biggest legal challenges is proving its existence. South African courts consider several factors when determining whether a universal partnership exists:

• Did the partners behave in a way that suggests they intended to share assets and responsibilities?
• Was there a clear agreement—written or verbal—between the partners?
• Did the partners make financial contributions towards shared property or expenses?

Example: If a couple lived together for 10 years and both contributed to buying a house, but the property was registered only in one partner’s name, the other partner may have to go to court to claim their share of the property. The court will examine their financial records, agreements, and any evidence of their partnership.

How to Protect a Universal Partnership Legally

To avoid legal disputes, couples in a universal partnership should consider signing a cohabitation agreement. This contract outlines each partner’s financial and property rights and responsibilities, similar to a marriage contract.

A cohabitation agreement can cover:

• How shared expenses will be handled.
• Ownership of property and assets acquired during the relationship.
• What happens in the event of separation or death.

Without a written agreement, one partner may struggle to claim a share of assets if the relationship ends.

What Happens if One Partner Dies?

Unlike married couples, partners in a universal partnership do not automatically inherit from each other under South African intestate succession laws. If one partner dies without a will, the surviving partner may have to go to court to claim financial support from the deceased’s estate.

To ensure legal protection, it is recommended that partners in a universal partnership:

• Draft a cohabitation agreement.
• Create a joint will that outlines inheritance rights.
• Keep financial records of contributions to shared assets.

Example: If a woman lives with her partner for 15 years, contributing equally to household expenses and shared investments, but her partner passes away without a will, she may have difficulty claiming her fair share of their assets. A cohabitation agreement or will would provide her with stronger legal standing.

Choosing the Right Marriage Contract

Which Marriage Agreement is Best?

Choosing the right type of marriage agreement is a critical decision that can have lasting financial and legal implications. The best choice depends on various factors, including asset protection, financial independence, and long-term goals.

Factors to Consider When Choosing a Marriage Contract

Before getting married, couples should ask themselves:

• Do we want to share all assets and debts equally, or do we prefer financial independence?
• Do we have existing assets, businesses, or inheritances that need protection?
• What happens in the event of divorce or separation?
• How will our contract affect our children or future financial planning?

Comparison of Different Marriage Contracts

Type of Marriage Contract	Key Features
In Community of Property	All assets and debts are shared equally between spouses. If one partner incurs debt, the other is equally liable.
Out of Community of Property with Accrual	Each spouse keeps their pre-marriage assets separate, but assets acquired during the marriage are shared upon divorce or death.
Out of Community of Property without Accrual	Each spouse keeps full ownership of their assets before and during the marriage. There is no sharing of assets upon divorce.
Universal Partnership	A legal relationship where partners share assets and liabilities but are not married. It must be proven in court if disputed.

Common Questions About Marriage Contracts

Can I Change My Marriage Contract After Marriage?

Yes, but it requires a formal legal process. Changing a marriage contract after marriage involves applying to the High Court, which can be expensive and time-consuming. This is why it is crucial to make the right choice before getting married.

What Happens if We Do Not Sign an Antenuptial Contract?

If no antenuptial contract is signed, the marriage will automatically be classified as in community of property, meaning all assets and debts are shared.

How Can a Lawyer Help?

A legal professional can help you:

• Understand the legal consequences of each type of marriage contract.
• Draft a contract that aligns with your financial goals.
• Ensure that your contract is legally valid and properly registered.

Do You Need Legal Assistance?

Choosing the right marriage contract is one of the most important decisions a couple can make. Consulting a legal professional can provide clarity and ensure that both parties are protected. If you need expert guidance, email anzel@pagelinc.co.za for professional advice.