When a couple decides to jet off to an exotic location to take their vows, the most important thing to consider is which country’s laws will apply to the marriage. The determining factor is the ‘domicile’ of the husband at the time of the marriage. ‘Domicile’ is typically regarded as the country in which the husband has his permanent home and which he regards as his homeland. Say a South African couple decides to tie the knot in Mauritius, for example, the parties will be married in accordance with the laws of South Africa.
The crucial consideration before jumping on that plane is the South African matrimonial property regime. In terms of our law, for marriages out of community of property (including those with the accrual system), the parties must enter into an antenuptial contract in South Africa before leaving the country. 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 antenuptial contract, which can be a costly process.
Similarly, if a South African woman marries a man domiciled in the UK on a picturesque wine farm in the Western Cape without entering into an antenuptial contract, she may be in for a rude surprise. She may believe she’s getting married in community of property, but the applicable marital regime will be determined by English law, which is normally in these circumstances out of community of property.
SOUTH AFRICAN MARITAL REGIME
Under South African law, when no antenuptial contract has been entered into, a marriage will automatically 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 also be equally responsible for one another’s debts. If one party is declared insolvent, the other will be too. With very few exceptions, 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’s specifically excluded in the antenuptial 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, as well as donations and inheritances yet to be received.
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, to the extent that such a claim can be substantiated.
If you intend getting married outside South Africa and/or need advice on matrimonial property regimes, please contact Marteen Michau on +27 11 778 6656.