What you need to know before you tie the knot

Are you tying the knot soon? Then this article will provide you with all you need to know on what the formalities of a valid marriage is in South Africa Law as well as educate the readers on the different types of matrimonial regimes a couple may enter into.

Requirements for a valid marriage.
In order for a marriage to be valid in South African Law, the
following must be present:

  1. The couple intending on getting married are to be above the age of 18 years;
  2. They must wilfully consent to the marriage;
  3. Any person under the age of 18 years is considered to be a minor and must therefore obtain the consent of their parent or guardian before entering into a marriage;
  4. The marriage must be considered to be lawful, that means the couple cannot be closely related by blood, such as a marriage between brother and sister.
  5. There must be no subsisting marriages unless of course in terms of customary marriages;
  6. The marriage must be concluded by a registered marriage officer and in the presence of two competent (above the age of 18 years) witnesses.
  7. Lastly the marriage is to be registered at the respective Department of Home Affairs.

What are the different types of Matrimonial Regimes?

Marriage In community of property

This consequences of this form or marriage are that both persons will have a joint estate and will automatically own 50% of the joint assets and be liable for 50% of the joint liabilities in the estate. The upside to this type of regime is that you will own 50% of your spouses’ assets regardless of whether the assets were obtained prior to the marriage of not. The downside to this type of marriage is that, in the event of your spouse having judgement against their name, you will automatically be joined as a co-defendant in which the creditor will hold you jointly and severally liable for your spouses’ judgement debt. Which may result in your assets being attached and sold in execution to satisfy the debt you may not have caused on your own accord. This is purely because all assets and liabilities owned and incurred by each spouse form part of the joint estate.

Marriage Out of Community of Property

What this means is that any assets and liabilities you have will be for your own account. Likewise with your spouse. The good thing about this regime is that in the event of judgement against your spouse, your estate will be protected from attachment by creditors. This is the same thing as a marriage out of community of property without the application of the accrual system.

 Marriage Out of Community of Property with the Accrual System

This is the same as a marriage out of community of property with the addition of an accrual system in place. An accrual system is a calculation of assets and liabilities between your spouse and yourself from the date of marriage till the date of dissolution. The effect of the accrual system comes into play upon dissolution of the marriage win which each estate will be valued and depending on which spouse’s estate has accrued more than the other, that spouse will have to pay the other spouse the value to equal out the value of each estate. The accrual will only apply to the assets and liabilities obtained and incurred during the subsistence of the marriage. Further parties who contemplate marrying in terms of this regime are to conclude an Anti-Nuptial Agreement and register same at the Deeds Office prior to the finalisation of the marriage before a marriage officer. Only persons who are Notary Public’s can draft an Anti-Nuptial Agreement.

Civil Marriage vs Civil Union

A civil marriage is between a man and woman (opposite sex) and can be entered into by persons under the age of 18 provided they have obtained the relevant consent from their parent and guardian. A civil union on the other hand is entered into between two people of the same sex. Persons under the age of 18 years may not enter into a civil union. When is a marriage considered to be dissolved? A marriage can only be dissolved or end upon the death and by virtue of a decree of divorce.

Legalese of the Edition!

“Matrimony: The state of being married to one another”


Article by: Theuri Nayagar,

Attorney & Director at Naidoo Nayagar Inc.

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