The fiduciary world is fascinating.  The more you learn, the more you realise how little you know.

In the last year we’ve had a firm objective at Foundation to ensure that our clients are in contact with our estate planning specialists and have valid, updated wills. As we studied each one we came across some complicated wording (and technical bequests!), but we are fortunate that our law is very clear about the basic principles.

This month I’m going back to some of these basics and recapping what we know about the different types of marriages and marital regimes in our country. It’s important to understand the legal definition of a spouse, because it has various legal implications - in particular on an individual’s estate.


What do you need to know about your own marriage?

Before we take a closer look at the legalities, are you able to answer “yes” to the following questions?

  • Do you know which act (and the terms) you were married under?
  • Do you what matrimonial regime or matrimonial property systems you were married in?
  • If you are married Out Of Community Of Property, is the accrual system included and how are you keeping track of accruals?
  • Does your will take your marital regime into account?
  • If you have a long-term life partner, do you have a co-habitation agreement?

These questions are very important and impact the way we approach your financial planning as well as estate planning.


The different types of marriages


Before the Recognition of Customary Marriages Act came into effect in 1998, the only legal type of marriage in South Africa was one that was concluded in terms of the Marriage Act. Today (luckily) our legislation provides other options for more diverse needs.

A union between people is recognised as a marriage in South Africa if it is concluded in terms of the following Acts:

  • Marriage Act 25 of 1961. This is the traditional way; simply put it’s a marriage between a man and woman.
  • Recognition of Customary Marriages Act 120 of 1998. This applies to marriages concluded in terms of customary law, and it is applicable to customary marriages that occurred both before and after 1998. It includes monogamous and polygamous marriages.
  • Civil Union Act 17 of 2006. This is similar to the Marriage Act in terms of a monogamous union. While it usually applies to a union of persons of the same sex, individuals of opposite sexes can also conclude a marriage in terms on this Act. Traditional Muslim and Hindu marriages are not recognised in South Africa as a legal marriage, regardless of whether it is monogamous or polygamous. The Muslim Marriages Bill was drafted in 2011 but has not been enacted and as a consequence, Muslim spouses remain largely without legal recourse. The solution for these individuals would be to be married in terms of one of the above Acts, but this is usually not possible because of religious objections, or simply because of its polygamous nature. Interestingly a Muslim man is permitted to have up to four wives at the same time, while a Muslim woman may only have one husband.
  • Domestic partnerships, or long-term life partnerships, are not considered as a marriage in the eyes of the law.

It is advisable that a co-habitation agreement is put in place for both a Muslim marriage and/or domestic partnership, stating the financial status for each partner, division of living expenses and property (owned jointly or separately), and what the couples wishes are in the event of death.


Marital Regimes

The Matrimonial Property Act determines how parties in a legal marriage maintain control over their property and ultimately, their estates.

  • Community of Property (COP) – This is the default regime and applies unless an ante-nuptial contract is entered into before commencement of the marriage. Each spouse owns half the undivided share of the communal estate, and consequently half the debt.
  • Out of Community of Property – Spouses sign an ante-nuptial before the marriage. Each spouse owns and accumulates their own estate and is not entitled to the estate of the other.
  • Out of Community of Property including the accrual system – Spouses also sign an ante-nuptial agreement before the start of the marriage. In this case community of property is excluded so that each spouse keeps their pre-wedding assets, but the communal estate after the marriage is divided equally. Each spouse is also entitled to the growth of the assets excluded from the communal estate.


Which regime applies to which marriage type?

Marriages in terms of Marriage Act and Civil Union Act - Any one of the three different regimes may apply, but will be COP by default unless an ante-nuptial agreement is entered into beforehand.

Marriages in terms of Recognition of Customary Marriages Act - The parties do not have an option in terms of the applicable regime because the date of the marriage will be the deciding factor. A monogamous customary marriage will be COP regardless of when marriage was entered into. Thanks to a groundbreaking case in the Constitutional Court in November 2000, a polygamous customary marriage will be COP after Nov 2000, but out of community of property before that date.


A note on the Maintenance of Survivng Spouses Act

Besides the Acts discussed above which set out marriage types and regimes, our law books also have a very important piece of weaponry in their arsenal called The Maintenance of Surviving Spouses Act.

This Act was enacted in 1990 to give a spouse a legal leg to stand on if he/she is negatively affected or disinherited by the wishes of the testator, or in the case where the testator dies intestate and there is no will.

It means that a surviving spouse may have a financial claim against a deceased estate in certain cases, particularly where the surviving spouse is unable to provide for his/her own maintenance needs.

Again, the term “spouse” is used throughout the Act - so what about Muslim marriages and long term domestic partnerships? While this Act automatically applies to the legal marriage types discussed above, the good news is that in 2009 the Constitutional Court also made it applicable to all Muslim marriages as well as persons in a long-term domestic partnership. These individuals are by pure legal definition not “spouses”, but are able to enjoy some protection under this Act.

Of course, what constitutes a valid will, and how marital assets are divided on divorce or death are separate subjects entirely; we will have a look at these in the near future. In the meantime, please read through your will and make sure that is updated with your latest wishes. Get in touch with us if you need help in making amendments and we will put you in touch with our estate planning specialists.