It is important to consider the legal consequences when you decide to get married, especially in relation to which country’s laws will apply to your marriage.
The determining factor as to what laws are applicable to the marriage is the ‘domicile’ of the husband at the time of the marriage. Persons are typically domiciled in the country in which they have their permanent home and which they regard as their homeland. Getting married in Las Vegas, for example, does not necessarily mean that US laws will be applicable to the marriage.
In terms of SA laws, the parties have to enter into an ante nuptial contract in South Africa before leaving the country to get married at a holiday destination, for the marriage to be out of community of property (with or without the accrual system). If they don’t, they’ll by default be married in community of property. Should they wish to amend this after the wedding, they’ll have to apply to the courts to register an ante nuptial contract, which can be a costly process.
Also, if you marry a man domiciled in the United Kingdom while on safari in South Africa without entering into an ante nuptial contract, the applicable marital regime will be determined by English law, which is normally in these circumstances “out of community of property”.
Under SA law, when no ante nuptial contract has been entered into, the marriage will be in community of property. This means the spouses’ estates are joined together and all assets are owned by them equally, irrespective of whether they were acquired before or during the marriage.
Parties married in community of property will be equally responsible for one another’s debts. If one party is declared insolvent, the other will be too. Neither spouse may act or deal with any asset without the consent of the other party.
In South Africa, the accrual system now automatically applies to all marriages out of community of property, unless it is specifically excluded in the ante nuptial contract. Under the accrual system, each spouse is generally entitled to share in the growth of the two estates at time of death or divorce. Any party may however exclude certain assets acquired by him or her before the marriage, and donations and inheritances may also be excluded.
When the accrual system is specifically excluded from the marriage, each spouse’s assets will be his or her own, irrespective of whether they were obtained before or during the marriage. A divorced or surviving spouse married out of community of property without the accrual system may however be able to institute a maintenance claim against the other spouse or the deceased estate of his/her late spouse to the extent that such a maintenance claim can be substantiated.
If you intend getting married outside South Africa and/or need advice on matrimonial property regimes, please contact marteen@fidelisvox.co.za or tamryn@fidelisvox.co.za.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)