Part B
Law of Marriage
- Formation of the marriage has the following requirements:
o A valid marriage relates to the parties’ capacity to marry, the parties’ consensus, and the
applicable legislation’s requirements.
- Civil marriage in terms of the Civil Union Act 17 of 2006 and Marriage Act 25 of 1961.
o Marriages and Civil Unions are to all intents and purposes the same
o Same legal consequences
o Civil Union Act for heterosexual couples and same-sex partners.
o Marriage Act for heterosexual couples.
o Under both Acts, the relationship must be solemnised by a competent marriage officer
in the presence of the parties getting 'married' who should provide their identity
documents and declaration of the purpose of marriage and two competent witnesses.
o If one of the parties/ both parties to the intended marriage is a minor, written consent
from both parents/guardians is required.
- Customary law – Recognition of Customary Law Marriages Act 120 of 1998
o In terms of the Recognition of Customs Marriages Act (RCMA).
o Marriage must be celebrated, negotiated and entered into terms of customary law.
o Can be polygynous.
o The prospective spouses must both be above the age of 18 years and must both consent
to be married to each other under customary law, and the marriage must be negotiated
and entered into or celebrated in accordance with customary law.
o Failure to register does not affect the validity of the marriages.
o If not polygynous, can be changed to civil marriage.
- Religious marriages
o Valid if the marriage officer is registered in terms of the Marriages Act.
o Courts have recognised "invalid" religious marriages as valid for duty of support
(maintenance).
o The validity of the marriage for religious purposes depends on the rules of the religion.
o If not, courts have recognised the marriages for maintenance orders
o Women’s Legal Centre v President of the Republic.
Legal consequences of marriages
- Impact one’s estate.
- Duty of support between spouses is invariable.
- Other patrimonial consequences can be varied in an antenuptial contract.
- Patrimonial consequences are regulated i.t.o the MPA.
Marriage in community of property.
- Default system
- Upon marriage both parties’ estates (A+L) are combined into joint estate.
- Both parties are entitled to joint administration of the estate
- Affects one’s capacity to enter into certain contracts
- Upon dissolution the net estate is divided equally between the parties
- Parties may also reach a settlement regarding the division of the assets
, - A party can also loose a right to share (wholly or partly) in the j e if the divorce is granted on the
irretrievable breakdown of the marriage Court may consider the duration of the marriage,
circumstances that led to breakdown and the misconduct of the party
- It is also possible to change the matrimonial property system to out of community of property
Assume Thabo and John want to get married in a community of property Thabo’s estate consists of household movables
R 50 000 credit card debt of R 30 000 and exchange-traded funds held at JSE R 10 000 John owns gadgets worth R20 000.
How much is their joint estate?
3 years into the marriage, John decides to file for divorce on the ground of irretrievable breakdown of the marriage Their
estate is as follows John inherited a house from his late father valued at R 1 5 million, acquired a vehicle finance for R
700 000 pension fund R 300 000 and credit card debt for clothing R 50 000. Thabo has cash savings held in his name of R
300 000 and a credit card debt of R 10 0000. Their household furniture is valued at R 100 000.
How much is each party entitled to?
- Inherited = part of community of property
Assets:50 000+ 10000+ 20 000
Liabilities :R 30 000
Joint : R 50 000
Distribute : R 25 000
Marriage out of community of property
- Parties must enter into an ante-nuptial contract before the marriage.
- Upon marriage each party retains its own estate.
- During the marriage a party is entitled to administer their own estate.
- Upon dissolution of the marriage, each party retains their own estate.
- Greyling v Minister of Home Affairs
o Court decision still awaiting confirmation by the Constitutional Court.
Marriage out of community of property with accrual
- Similar to marriage out of community of property.
- Parties enter into an ANC which states that the marriage is out of the community of property
with accrual.
- Upon dissolution, the spouse whose estate has shown smaller growth (less accrual) is entitled to
half of the difference between the two accruals at dissolution.
- Inheritance, legacies, donations, and liabilities are excluded from accrual. As well as non-
patrimonial damages and assets excluded in the ante-nuptial contract.
- Parties may also change the mps into marriage out of the community of property.
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