South Africans have a wide array of marriages to choose from. South African family lawyers are faced with a challenge: they are required to understand a complex web of different forms of marriage, including the following different marriages:
International Marriages entered into between foreigners who marry in other countries before arriving in South Africa.
Generally speaking, polygamous marriages are not legal in South Africa, though there are exceptions, such as those concluded and registered in terms of the Customary Marriages Act or in terms of custom, but not registered – the latter may well have some enforceable consequences, but they are not regarded as legally binding, in the way that the marriages registered in terms of the Acts referred to, above.
Those marked with asterisks (*) are fully ‘legal’ in South Africa and many of the internationally concluded marriages are also recognised by our law. So much so, that our Divorce Act provides that in respect of a valid marriage entered into outside of South Africa, the proprietary consequences of a divorce may be terminated in accordance with the laws of the land in which the couple were married.
It is essential that married people make the effort to understand the legal consequences of their marriages. They ought to do this before they actually marry, so they can make informed decisions as to the type of marriage they want.
For example, if two South Africans meet, fall in love and rush off to marry without any prior legal formalities, they will be married IN community of property, even if the actual marriage takes place in another country – while on honeymoon in England, perhaps. When they return and find that they now share not only each and every asset they possess, but are also liable for each other’s debts, they could be in for a shock.
Proprietary Consequences Can Be Altered
The unhappy couple mentioned above are able to change their marriage to one that is OUT of community of property by way of a complicated legal procedure; it costs money, because you need an attorney, and, perhaps, an advocate to prepare the documents, comply with all the formalities and guide it through the courts until you can sign, and register, a document having the affect of an ante nuptial contract. You can, of course, also do the opposite – i.e. you can change a marriage out of community of property into one that is in community of property by way of the same process.
When In Doubt . . .
If you are planning to get married, see a specialist family law attorney such as Roger, to be fully advised as to the type of property consequences are best for you and how to achieve your objective.
Most people do not begin to actually understand the consequences of the marriage type that they chose, until they are about to divorce. By then, it is usually too late to do anything about it, if you chose (or were advised) badly.