Tying the knot abroad:
there may be hitches
Most South African couples wanting to tie the knot are familiar with our three marital regimes – in or out of community of property, with ‘out’ having the further option of either with or without accrual. But what many don’t realise is that getting married overseas, or being domiciled outside South Africa, might complicate matters considerably.
Matrimonial property regimes are systems of property ownership between spouses providing for the creation or absence of a marital estate, and how it will be divided and/or inherited should the marriage end. In terms of the Matrimonial Property Act 88 of 1984, there are three forms of matrimonial property regimes in South Africa:
But what happens when a couple decides to get hitched outside South Africa, or if one or both of the parties don’t live in this country? The legal term used is ‘domicilium’.
In both of these cases, things can get complicated. The matrimonial property regime applicable to your marriage in such cases will, unless you expressly agree otherwise, be governed by the laws of the country in which the husband is domiciled at the time of the marriage.
So, for example, if a South African woman gets married on a picturesque wine farm in the Western Cape to her fiancé domiciled in the UK, and they don’t enter into an antenuptial contract, the applicable marital regime will be determined by English law – out of community of property.
Even if the couple later immigrates to South Africa, the marriage will remain out of community of property. If the marriage should end, either by death or divorce, a South African court will be obliged to apply English law in respect of dividing the estates of the parties.
A further point to keep in mind is that a marriage certificate isn’t necessarily proof that the laws of a certain country govern the marriage. In most foreign countries, marriages solemnised in South Africa will be recognised when an unabridged marriage certificate and duly authenticated registered antenuptial contract is submitted to the relevant country’s consular authority.
If you need advice on matrimonial property regimes, please contact Ken Newport at kenn@privatewealth.sanlam.co.za.
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