The rules of civil marriage

Source: http://www.paralegaladvice.org.za

This article deals with marriages in & out of community of property and Civil marriages of Africans before 1988

Marriages create certain rights and duties for the husband and wife. In all marriages, couples have a legal duty to live together and to support each other. This means that they must look after any children and the home, and provide the family with food and clothing, medical care and other ‘household necessaries’. Either or both partners work to earn money. Traditionally, people saw some of these duties as ‘women’s work’ and some as ‘men’s work’. One third of households inSouth Africa are headed by women, with the husband being unemployed or away.

The other rules of marriage depend on how you are married. You can choose how to arrange these rules for your own marriage. Under apartheid, the rules for Africans were different from the rules for non-Africans, and some people are still affected by these differences.

All civil marriages are automatically in community of property, unless the partners sign an ante-nuptial contract before the marriage. (Except African marriages before 1988, which were automatically out of community of property unless the partners clearly chose to marry in community of property.)

Marriages in community of property

This is the automatic system. If you get married without signing any contract, you will be married in community of property.

‘In community of property’ means that everything the couple own, and their debts, from before their marriage are put together in a joint estate. And everything they earn or buy after their marriage is also part of this joint estate.

There is joint administration of the things the couple own. This means the husband and wife share in controlling their joint property. To protect each spouse, the other partner’s written permission is necessary for big things like buying or selling a house, signing credit agreements, withdrawing money from accounts in the other spouse’s name and so on.

If they get divorced the joint estate gets divided into half. One half belongs to the wife, the other to the husband. Any debts are also shared.

Before 1 November 1984 the husband had the marital power in all marriages of non-Africans in community of property. This meant that he acted as his wife’s guardian and she was like a minor under the law – someone under 21 years old. The husband controlled the joint estate, including his wife’s property. The wife could not sign contracts without her husband’s consent. She could not take someone to court nor be taken to court herself without her husband’s involvement. In 1984 the Matrimonial Property Act scrapped the marital power for all marriages after 1 November 1984.

In terms of the Bill of Rights which is part of our Constitution, all people are equal before the law. It is an offence to discriminate against people on the basis of many things, including on grounds of sex or gender. In 1993 the Fourth General Amendment Act was passed. The Act tried to improve many laws that discriminated against women in the past.

The Fourth General Amendment Act improved the legal position of women in South Africa, because it scrapped marital power of a husband over his wife.

Now a woman married in community of property:

• has equal rights to administer the joint estate
• can enter into contracts without her husband’s permission
• can sue or be sued in her own name

Both men and women must now say what their marital status is when they fill in forms.

Marriages out of community of property with an ante-nuptial contract

Before they marry two people can make an agreement called an ante-nuptial contract. Usually this agreement excludes (or cuts out) community of property. This means the husband and wife each own and control their own things – they haveseparate estates.

Under the Matrimonial Property Act of 1984 the accrual system automatically applies to their marriage, UNLESS they agree in their ante-nuptial contract that they do not want the accrual system.

‘Accrual’ means increase. The accrual system recognises that during a marriage the husband and wife keep on adding to their joint property . For example, they may add to their property by both working and bringing money into the marriage. Or one spouse may add indirectly by staying home and looking after the home and children so that they do not need to employ someone to do that. The accrual system allows both partners to benefit from the growth to their joint property during the marriage.

While the marriage lasts, the husband controls his own separate estate and the wife controls hers. But if they divorce, any increase in the value of both estates gets shared equally by the partners. If the couple chose not to have the accrual system, if they divorce the partners keep their own things and are responsible for their own debts.

This is how the accrual system works:

• Certain things are excluded from the accrual system, such as inheritances and gifts.
• At the beginning of the marriage the property of each spouse is valued.
• During the marriage each spouse controls and adds to his or her own property.
• When the marriage ends through death or divorce, the value of each spouse’s property before the marriage gets compared with the value at the end of the marriage. This shows the increase in each spouse’s property. (Inflation is taken into account.)
• These two increases are added together. This gives the total accrual. Then this is divided equally into two and shared between the spouses.

Civil marriages of Africans before 1988

Africans married by civil marriage ceremonies before 2 December 1988 wereautomatically married out of community of property but the husband still had themarital power. (This was the opposite of non-Africans, where the automatic marriage was in community of property.) The couple did not pool their property. Each partner kept his or her separate property. And each partner owned any property he or she got during the marriage. But the husband had the marital power, so he managed both his own property and his wife’s property. The couple could make an ante-nuptial contract to exclude the marital power. Then this type of marriage would be exactly the same as a non-African marriage out of community of property. But very few people ever did this.

Africans could marry in community of property if they wanted to. To arrange this, the couple had to tell the marriage officer one month before the ceremony that they wanted their marriage in community of property. They could only do this if the husband was not married to any other woman by customary marriage. African marriages in community of property were then the same as non-African marriages in community of property. In other words, there was a joint estate and the husband controlled it. And the wife had the same protection against her husband misusing the marital power.

In 1988 the Marriage and Matrimonial Property Amendment Act changed the law about civil marriages of Africans and made them the same as any other civil marriage. So marital power is scrapped, the automatic marriage is in community of property unless couples sign an ante-nuptial contract, and out of community of property marriages have the accrual system unless couples choose not to have it.

From 1998, the Recognition of Customary Marriages Act recognises all African customary unions as legal marriages. All new marriages formed after the Act will automatically be in community of property unless the parties draw up an ante-nuptial contract. The husband has no marital power.
Changing the way you were married

Even though the laws may have changed since you were married, your marriage is still governed by the way you were married and the rules of marriage for that kind of marriage at that time (except that marital power is automatically scrapped).

Married people can go to the High Court and ask the court to change the way you were married. In other words, you can ask the court to change your marriage from a marriage in community of property to one out of community of property, or the other way around. Both husband and wife must apply together, and you must show the court good reasons why you want to change the way you were married. The longer you wait before applying to change your marriage, the less the court is likely to allow you to change, unless you have very good reasons.

If the husband in an African customary marriage wants to marry a new wife, all of the wives can ask the High Court to help them develop a new property system for their marriage. The court will try to look after the interests of all the parties and make sure that the existing wives and children get a fair deal.