This article was necessitated by the growing confusion primarily among most of our black client’s who are about to get married, or in some instances, after the horses had bolted. (if I may borrow a phrase)

BRIEF LEGAL BACKGROUND

Civil Marriages concluded by Black People prior to 2 December 1988 were in terms of the Law, automatically out of Community of Property, unless, within one month of entering into the marriage, the spouses made a declaration before a Magistrate or other recognized officer to the effect that they intended to be married in Community of Property;

The Legal position was changed dramatically on 2 December 1988 when the marriages concluded by Blacks were brought in line with those of other racial groups of our rainbow nation;

Most importantly, these changes brought about the abolition of the Marital Power, which was traditionally the preserve of men. Simply put, pre-1988, a wife who was a party to a civil marriage could not enter into contracts on her own and without the assistance or consent of her husband. She was, to say the least, in a position similar to that of a minor (under age child);

Post 1988, a wife could legally enter into contracts and conduct her affairs without the consent of her husband;

That being the case, both spouses are now treated as equal partners;

The current legal position when man and woman (of all racial groups) get married, they are automatically presumed to be married in Community of Property (“COP”), unless they produce (to the marriage officer) a properly executed Ante-Nuptial Contract (“ANC”);

Should they have such a document with them, then the marriage officer will indicate on the marriage certificate that their marital regime is Out of Community of Property (“OCOP”);

However, in the absence of an ANC, they would be married in COP;

I get a sense, from speaking to most of my clients, that some of them ended up with marriages in COP by default and to a large extent, due to their own ignorance or failure to make proper enquiries until it is too late, (usually on the day of the wedding ceremony or at the offices of Home Affairs)

SUGGESTION
It is suggested that before parties even set the date for the big day, they should first consult with their attorney, who would then advise them accordingly. If the attorney is also a Notary (Specialist duly qualified to draw the ANC) he would then assist them accordingly;

Failure to do so, might result in what ought to be a happy couple stuck with a “wrong marital regime”, with serious adverse consequences;

On a lighter note, it is still possible to convert from a marriage In Community of Property to one Out of Community of Property.

How is that achieved? See our next article in that regard

Zola Majavu (Principal Director)