Union Agreements: All About The Types Of Marriage Contracts In South Africa: PDF, Cost, Price, Examples

What is the best marriage contract in South Africa? All the details to know about the various legal agreement policies between couples.

South Africa, with its rich cultural tapestry and picturesque landscapes, has become a favored destination for weddings, where couples from diverse backgrounds come together to celebrate love.

Amidst the joyous celebrations, one essential aspect often overlooked is the significance of marriage contracts.

In this in-depth exploration, JanaTribe will unravel the intricacies of marriage contracts in South Africa, shedding light on the various types and their profound importance.

A brief overview of marriage in South Africa and the types recognised by the law

Due to the diversity of the nation’s cultures and religions, many different types of marriage are practiced in South Africa.

Women are only allowed to have one spouse, whereas men are allowed to have multiple spouses. All polygamous marriages entered into by the provisions of the Recognition of Customary Marriages Act are legal. The husband in an existing customary marriage wishing to marry a second wife must apply to a competent court for such a marriage to be legal.

Marriage as a foreigner in South Africa comes with a lot of benefits. In our previous article, we discussed that aside from being able to have a residency, it comes with easy spousal visa acquisition.

What are the types of marriages in South Africa? South African law recognises three types of marriage: civil unions, civil marriage, and customary weddings.

1. Civil marriage

This kind of union is solemnised at churches and any Department of Home Affairs office. The Marriage Act governs it, and the regulations are also issued based on the terms of the Act.

If a civil marriage occurs, it must be witnessed by at least two witnesses who will also attest to the issuance of the marriage certificate. This can occur in any of the following places:

• Either a church building or any other building where religious services take place.
• A private house or public office, as long as the doors are opened.
• If either of the intending spouses is seriously ill or has injuries, the solemnisation can occur in a hospital or the concerned facility.

There are three types of civil marriages in South Africa. They include civil marriage in community of property, marriage out of community of property, and marriage out of community of property with accrual.

2. Customary marriage

Customary marriage in South Africa is negotiated, celebrated, or concluded according to any of the systems of indigenous African customary law in South Africa.

A customary marriage’s marital regime, like a civil marriage’s, can be in or out of a community of property.

Three conditions must be met for a customary marriage to be legally valid.

• Both parties must be over the age of 18.
• They must both agree to be married under customary law.
• Their marriage must be celebrated following their community’s customary law.

3. Civil union marriage

Civil unions, or civil partnerships, were introduced in South Africa in 2006 by the Civil Union Act, which also legalised same-sex marriage. While civil unions are commonly associated with same-sex couples, they can also be formed by opposite-sex couples. Civil union marriages have the same rights, responsibilities, and legal consequences as civil marriages.

Having known what weddings are like in South Africa as well as the various types of marriages the country’s law legalises in its constitution, let’s delve into the various forms of marriage contracts.

In this section, we will explore the essential elements and benefits of marriage contracts, shedding light on why couples should consider this legal instrument as an integral part of their matrimonial journey. Understanding the essence of marriage contracts is not just a matter of legal prudence but also a means to foster transparency, trust, and long-term harmony in a marital partnership.

Understanding Marriage Contracts

What is a marriage contract? It is a formal agreement between two people to enter into a marriage.

This is a legal document that you sign voluntarily. It defines your matrimonial regime and each spouse’s contribution to household expenses. It’s a document that governs how the couple’s finances are managed and how property excluded from the family patrimony is distributed in the event of divorce or death.

In the realm of matrimony, the legal framework provided by marriage contracts serves as a cornerstone for couples to navigate the complexities of their union.

These contracts go beyond the vows exchanged in a ceremony, offering a structured mechanism to define financial arrangements, responsibilities, and rights during the marriage.

The essence of these contracts lies in fostering transparency, trust, and a shared understanding between partners.

From governing the distribution of assets to outlining spousal support, a well-crafted marriage contract serves as a roadmap for navigating the complexities of married life.

Types of marriage contracts in South Africa

There are two main types of nuptial contracts in South Africa, per a publication by Western Carpe. They include:

1. Marriage in community of property and
2. Marriage out of community of property (also known as an antenuptial agreement).

However, other outlets add two additional types: customary marriage contracts and marriage in community of profit and loss.

1. Marriage in community of property

When this type of wedding agreement is entered into, the partners have agreed to combine whatever they have—assets and liabilities—before they get married and during their union.

While this creates and promotes a sense of partnership between the two, the challenging thing is that before any property can be bought or sold, written permission from the other partner must be sought.

As the two parties share whatever assets they individually owned before the wedding and built together during their union, they have to share the assets equally in case of a divorce.

There is no private management of assets; everything is managed together. Even when one partner needs to sign a credit agreement, written permission from the other partner must be sought.

All of these exclude any items you’ve inherited.

Pros:

• If you get a divorce, you’ll get half of your shared assets.
• You’ll manage your assets together instead of doing so individually.

Cons:

• To enter into any credit agreement, you’ll need written permission from your spouse.
• All the debt you had before and during marriage becomes part of your joint estate. This means that you’re responsible for your partner’s debt.

2. Marriage out of community of property (Antenuptial contract agreement)

The antenuptial contract agreement is also known as marriage out of community of property. When this type of wedding contract holds, it means that either or both parties do not want their assets to be shared equally in the event of divorce or death.

If this is going to happen, both parties must have drawn and signed an antenuptial contract (ANC). When conducting this type of marriage contract, there are two options from which couples can choose: an antenuptial contract with or without accrual.

When there is an ANC with accrual, in the event of divorce, whatever asset value each of the parties brought into the union is first taken out, and whatever is left, what both of them have built together, is then shared.

Pros:

• You’re not responsible for your partner’s debt.
• You’re allowed to manage and grow your assets without your partner’s permission.
• The assets you owned before your marriage are protected and won’t be included in your marriage contract.

Cons:

• If you’re a financially stronger partner, you’re required to share the assets you acquired during your marriage with your partner.
• If your partner is the breadwinner, you’ll be financially dependent on them.

On the other hand, when an antenuptial contract without accrual is held, it means that all of each party’s assets and liabilities, whether acquired before or after marriage, belong to that party.

Pros:

• You control your assets independently.
• You don’t need consent from your spouse to enter into any agreements.
• Your partner cannot claim any of your assets at the end of your marriage.

Cons:

• If you give up your career or, choose to stay at home to care for your children, this system won’t benefit you because your partner is required to share their assets with you.

So, whatever assets or liabilities each had before and during their union remain part of their assets. A good thing about this is that the partners have separate contractual capacities, and each one’s assets remain protected.

3. Customary Marriage Contracts

South Africa recognizes customary marriages governed by traditional customs. While these marriages inherently have legal standing, couples may choose to formalize their agreements through marriage contracts.

Customary marriage contracts align traditional practices with legal clarity, ensuring a harmonious integration of cultural and legal frameworks.

4. Marriage in Community of Profit and Loss

A less common but legally valid option is marriage in-community of profit and loss. This contract combines elements of both the antenuptial contract with accrual and the in-community of property, allowing spouses to share profits while maintaining separate estates for losses. It provides a nuanced approach to financial arrangements within the marriage.

To get an antenuptial application pdf, click here.

A look at marriage contract cost

The price of a marriage contract varies depending on the type of agreement as well as the type of marriage. Also, the overall cost might go up considering the charges of a marriage officer. According to the data on the official website of SA Antenuptial24, the total cost of an all-inclusive antenuptial contract is estimated at R1450.

A breakdown of the cost for the registration of an antenuptial contract is as follows:

Conclusion

To sum up, while the allure of a South African wedding captivates many, the foundation of a resilient and legally secure marriage lies in understanding and embracing the significance of marriage contracts. There are two types of marriage contracts: a community of property or an antenuptial agreement. If you choose to be married in a community of property, your assets are shared equally. If you don’t want your assets to be shared, you need to sign an antenuptial agreement before you get married. If you don’t sign an antenuptial agreement, you’ll automatically be married in a community of property.

Frequently Asked Questions

1. What is the best marriage contract in South Africa? The best marriage contract depends on the couple’s preferences and financial goals. Common options include the antenuptial contract with or without accrual and the in-community property contract.

2. How much does a marriage contract cost in South Africa? The cost of a marriage contract varies. It is advisable to consult with a legal professional to get an accurate estimate based on the type of contract chosen and individual circumstances.

3. How many marriage contracts are there in South Africa? There are several types of marriage contracts in South Africa, including the antenuptial contract and in-community of property. Some outlets mostly add type, the customary marriage contracts.

4. How much does it cost to change a marriage contract in South Africa? The price of changing a marriage contract can vary. Consulting with a legal professional is essential to determining the specific fees involved in the process.

5. What is the default marriage contract in South Africa? The default marriage contract in South Africa is in community of property unless a couple specifically chooses another contract.

6. Is a contract marriage a real marriage? A contract marriage is a legal and valid form of marriage. Couples can choose different contracts based on their preferences and legal considerations. However, while registered marriages provide legal protection to both parties, such as rights to inheritance, property, and spousal support, contract marriages do not provide any legal protection, and the terms of the agreement may not be enforceable in court.

7. Where can I find my marriage contract in South Africa? The original marriage contract is typically kept by the notary who facilitated the agreement. Couples should have a copy, and the contract may also be registered with the Department of Home Affairs.

8. How much does it cost for a marriage contract in South Africa? The cost varies, and it’s recommended to consult with a notary or legal professional for specific pricing based on the chosen marriage contract.

9. How do marriage contracts work in South Africa? Marriage contracts outline the financial arrangements between spouses, including property rights and the distribution of assets. They serve as a legal framework for the marriage.

10. How long does it take to change a marriage contract in South Africa? The duration of changing a marriage contract can vary. Consult with a legal professional to understand the specific timelines and requirements.

11. How do I get a marriage contract? Couples can obtain a marriage contract by consulting with a notary or legal professional who specializes in family law. The notary will guide them through the process and draft the contract.

12. Can a marriage contract be changed in South Africa? Yes, marriage contracts can be changed, but the process involves legal procedures. Consultation with a legal professional is necessary to understand the steps involved.

13. What is a normal marriage contract? The normal marriage contract in South Africa is the antenuptial contract, either with or without the accrual system. However, couples can choose the contract that best suits their needs.

14. What is a legal end to a marriage contract? The legal end to a marriage contract is either through divorce or the death of one of the spouses. In the case of divorce, the terms of the marriage contract may influence the division of assets.

15. What is the difference between a contract and a marriage? Registered marriage and contract marriage are two different types of marriage, with some key differences. While registered marriages provide legal protection to both parties, such as rights to inheritance, property, and spousal support, contract marriages do not provide any legal protection, and the terms of the agreement may not be enforceable in court.