Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We
are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.
The old saying that love is blind is decidedly apt when
applied to the property laws that rule a marriage. Although few
couples think about divorce on their wedding day, common sense
suggests that perhaps they should. The fact is, marriage is no
different from any other contract.
The property laws that govern marriage changed drastically on
1 November 1984, when the Matrimonial Property Act became law.
Prior to that date there were essentially two types of marriage:
IN COMMUNITY OF PROPERTY Any money or
possessions belonging to either of the spouses at the time of the
marriage, or acquired by them at any time thereafter, cease to be
the private property of the one person and become part of a joint
estate in which each of the partners has an equal, undivided
BY ANTENUPTIAL CONTRACT Each spouse retains
his or her separate property and has complete freedom to deal
with it. If one partner is declared insolvent, the other's
property is protected from creditors. Apart from excluding
community of property, this contract might contain various other
provisions, such as the creation of a trust, or the settlement of
property by one spouse upon the other. Despite this, the courts
can order that, on divorce, a husband make over part of his
estate and pay maintenance to a wife left potentially destitute.
Marriages contracted after 1 November 1984 are governed by
three sets of rules:
IN COMMUNITY OF PROPERTY If no antenuptial
contract is entered into before the marriage, the couple are
still married according to the rules of community of property and
the rules of joint administration apply (that is, both spouses
administer their joint assets).
BY ANTENUPTIAL CONTRACT WITH ACCRUAL Profits
made by each of the parties during the marriage are shared when
the marriage is dissolved by death or divorce. All other property
is retained by the original owners. This is known as the accrual
BY ANTENUPTIAL CONTRACT WITHOUT ACCRUAL If
the accrual system is excluded in the antenuptial contract, the
marriage is subject to the same rules as marriages out of
community of property contracted before the promulgation of the
Matrimonial Property Act in 1984 except that, on divorce, the
courts will have no discretionary power to redistribute property.
In this instance, only periodic maintenance might be available to
the divorced wife.
Before 1984: in community of property
The marriage of a couple entered into prior to 1 November
1984, without an antenuptial contract, is automatically in
community of property, provided the husband was domiciled in
South Africa at the time of the marriage. If the husband was
domiciled elsewhere, the law of that country will determine the
consequences of the marriage.
Any money and possessions belonging to either partner at the
time of the marriage, or acquired afterwards, become part of the
joint estate, which is owned by the partners in equal, undivided
shares. In these marriages the joint estate was administered
solely by the husband by virtue of his marital power (which no
longer exists - it was abolished by an amendment to the
Matrimonial Property Act in 1993).
Certain items can be excluded from the joint estate to become
the sole property of one or other partner, for example, when a
third party makes a gift or leaves a legacy to one of the marital
partners with the proviso that it must not become part of the
If it is a monetary gift or if it is a gift that is sold for
money, anything purchased with the proceeds also becomes the sole
property of the same person. However, any interest earned on
money or income from property owned separately by one partner
will normally become part of the joint estate unless this also
has been specially excluded.
Engagement and wedding gifts given by a husband to his wife
generally do not form part of the joint estate.
If either partner has been awarded costs against the other in
matrimonial proceedings (for example, if a wife's divorce action
against her husband has been dismissed with costs), those costs
must be paid out of the unsuccessful partner's separate estate,
if there is one, or the relevant half-share of the joint estate.
This money then becomes the separate property of the other
If either partner sues a third party for non-matrimonial
damages, such as for defamation or for personal injury, any money
awarded as a result becomes the separate property of that partner
and does not fall into the joint estate.
The spouses may also sue each other for damages for bodily
injury. These damages must be paid out of the half-share of the
guilty spouse, and in so far as it does not cover the sum, out of
the joint estate, until an adjustment can be made on dissolution
of the marriage.
The amount of damages recovered by the injured spouse becomes
that partner's separate property.
Just as all the assets of both partners form part of the joint
estate, so must all debts owed by either of them be payable out
of the joint estate, whether they were incurred before or after
WHEN THE MARRIAGE ENDS On termination of
their marriage, the husband and wife are each entitled to a
half-share of the joint estate, with adjustments made for any
fines, damages or certain costs incurred by either during the
If a marriage ends in divorce, and it is clear that one of the
parties is to blame, the innocent partner may be awarded an order
for partial or total forfeiture of the benefits of the marriage
in community of property when the divorce is granted.
This means that, on division of the joint estate, the guilty
partner may forfeit his or her share, or be entitled only to a
half-share, or to whatever he or she has contributed to the joint
estate, whichever amount is smaller.
If, for example, a man and woman entered into a marriage with
each of them having assets valued at R5000, then the value of the
joint estate would be R10000 after the marriage. If at the date
of divorce the value of the joint estate is R50000, with the wife
having contributed R35000 and the husband R15000, the general
rule that the joint estate be equally divided will apply, each
party receiving R25000.
However, if the wife is the plaintiff in the divorce action
and she includes in her summons an application for forfeiture by
her husband of the benefits of the marriage in community of
property and the court grants this, then he will receive his
contribution of R15000 and she hers of R35000.
MERITS AND RISKS The advantage of marriage in
community of property is that each partner shares in the fortunes
of the other. A woman cannot be left completely destitute at the
end of her marriage because she is automatically entitled to a
half-share of their joint property.
However, it also has a disadvantage: if one partner becomes
insolvent, the other is protected only if he or she owns property
that does not form part of the joint estate. Everything in the
joint estate will be attached and sold off to pay any creditors.
Before 1984: by antenuptial contract
Many couples who married before 1 November 1984 entered into
an antenuptial contract to ensure that their marriage would be
out of community of property and out of community of profit and
loss, and that the marital power (which gave the husband full
power to deal with the joint property) would be excluded.
Antenuptial contracts vary, although there are certain clauses
that have appeared regularly over many years.
Although a couple could enter into an antenuptial contract
where community of property was not excluded, this was seldom
done. Normally the purpose of such a contract would have been for
one of the partners to create a trust or to settle property on
If the parties did not exclude the husband's marital power,
the husband had full power to deal with the joint property, or
even with his wife's property if the marriage was out of
community of property. It became standard practice, therefore, to
include a clause revoking the marital power.
Generally, couples married out of community of property are
free to deal with their personal property as they choose at all
times, and if one partner is declared insolvent, the other's
property is protected.
After 1984: in community of property
Two major differences exist between marriages entered into
before and after 1 November 1984: prior to that date, a marriage
without an antenuptial contract automatically gave rise to
community of property and the marital power; now absence of such
a contract gives rise to community of property and joint
The financial consequences of a marriage without an
antenuptial contract entered into after the commencement of the
Matrimonial Property Act do not differ from the financial
consequences of marriages in community of property celebrated
before the 1984 reform. The separate property of each of the
spouses still forms part of a joint estate owned by the partners
in equal, undivided shares.
Administration of the common property, however, does not fall
exclusively to the husband (a 1993 amendment to the Matrimonial
Property Act abolished marital power). Spouses in these marriages
share the administration of the joint estate. In principle, each
can perform any legal act in connection with the common property
independently of the other, although a number of more important
transactions require the agreement of both spouses and consent
may be required in writing.
After 1984: by antenuptial contract with accrual
Since the promulgation of the Matrimonial Property Act,
couples who married or who will marry by means of an antenuptial
contract that excludes community of property will automatically
be married according to the accrual system.
This means that they do not share their property while the
marriage lasts, but at the end of the marriage they acquire a
certain right to each other's property. The accrual is the extent
to which the husband and wife have each become richer at the end
of the marriage, compared with their respective financial
positions on their wedding day. The spouse with the smaller
accrual has a claim against the one with the greater accrual for
half the difference between the two accruals.
The system ensures that each partner retains as his or her
exclusive property for all time anything that he or she owned at
the time they were married. Anything that either one obtains
during the marriage (other than an inheritance, a legacy or a
donation not otherwise agreed upon in an antenuptial contract or
otherwise stipulated by the testator or donor) may have to be
shared with the other partner should the marriage come to an end.
(See accrual system.)
TIME TO PAY If the marriage ends and the
accrual has been divided, one partner may owe the other a large
amount of money. In order to avoid undue hardship, that partner
may apply to a Supreme Court judge for an order to defer payment
of all or part of this debt.
The judge may not necessarily issue such an order, but may,
instead, rule that the debt be paid by fixed instalments or by
the handing over of some specific property to the other partner.
Normally an arrangement will be made for the partner who is in
debt to the other to provide some form of security and to pay
interest if payment in full cannot be made at once. This will
become part of the court order.
After 1984: by antenuptial contract without accrual
If accrual is excluded in the antenuptial contract, the
marriage will be subject to the same rules that are applicable to
marriages contracted with an antenuptial contract before the 1984
Act except that, on divorce, the court will have no power to
redistribute property by virtue of a discretionary power.
Only periodic maintenance will be available to the divorced
wife in this instance. If the contract does not exclude the
accrual system, the system will automatically apply.
Drawing up an antenuptial contract
An antenuptial contract must be drawn up by a notary and signed by the couple
in his or her presence. The notary must then register it in a
deeds registry within three months of its being signed. A minor
must have the consent of his or her legal guardian (normally the
father) before entering into an antenuptial contract. Without
this consent, the contract would not be valid and the marriage
would be in community of property. (See minor.)
THE PROVISIONS Almost any provision can be
incorporated in an antenuptial contract, as long as it is not
illegal, immoral or impossible. A couple cannot incorporate a
provision that conflicts with the essential marriage
relationship. For example, they may not agree that they will not
live together as husband and wife or permit one another to be
A clause excluding the husband's liability to pay maintenance
for his wife if they should divorce, or one providing that
neither should be liable to an order for forfeiture of benefits
under the antenuptial contract on divorce, is also not allowed.
Succession clauses can be included in the antenuptial contract
to the effect that certain property should be inherited by either
of the spouses on the other's death. A trust can also be set up
in favour of either one of the partners or possibly of children
that may be born in the future.
The most common inclusion in antenuptial contracts is a
marriage settlement, such as gifts that are given or promised by
one person to the other in anticipation of the marriage.
Normally, one of the partners promises to give a specific
item, such as a house, an insurance policy or a motor vehicle to
the other. These promises can be conditional, such as when a
husband promises to take out certain insurance policies if and
when any children are born.
A couple may agree in their antenuptial contract that all
their wedding gifts they receive should become the property of
either one or the other.
After marriage, the terms of the antenuptial contract become
irrevocable unless they are amended by an order of the Supreme
Court. A marriage settlement is therefore binding on the person
who makes it.
If, during the marriage, the maker of the settlement does not
fulfil the promises made, these can be enforced as long as an
order of court has not been made that the other partner must
forfeit the benefits of the marriage.
How to change your matrimonial property system
Under the old law, the matrimonial system chosen by a couple
became unalterable once they married.
Spouses who wished to change their marriage contract could do
so only by getting a divorce and remarrying.
The Matrimonial Property Act introduced ways to change the
consequences that arose when a marriage was celebrated.
- Couples who married before or after the commencement of
the Act can apply to court to change the applicable
matrimonial property system;
- Either spouse whose conduct in administering the joint
estate (in a marriage where joint administration
operates) becomes intolerable, may have his or her powers
of administration suspended by the court for a period.
Applying to court
A couple may at any time make a joint application to court to
have their matrimonial system changed. They can do this
regardless of whether the marriage took place before or after the
promulgation of the Act or of the system chosen. The court must,
however, be satisfied that:
- There are sound reasons for the change;
- Creditors have been notified sufficiently in advance;
- No other person will be prejudiced.
If permission, that is, an order of court, is granted, the
couple will be authorised to enter into a notarial contract to
give effect to their new choice.
Protection against abuse
If during the course of a marriage in community of property,
or one subject to the accrual system, a spouse's interests are
(or are likely to be) seriously prejudiced by the conduct of the
other, he or she can apply to court for an order for the
immediate division of the existing joint estate or the accrual.
The court may order an equal division or a division on any
other basis that it considers fair. The court's power of division
amounts to a judicial discretion to depart from the consequences
that flow from the matrimonial system on the grounds of the
economic misconduct of one spouse. If the court grants such an
order, it may also direct that the community of property or the
accrual system should, in future, cease to operate in the
Alternatively, if a husband is a spendthrift who prejudices
his wife's interest in the joint estate, his wife can simply
apply to the court to have his administration suspended and, if
necessary, appoint a curator, who may be the wife. In this case,
community of property will continue.
What is a wife allowed to buy?
Any wife, whether married in community of property or not, is
entitled to buy certain necessaries needed to maintain the joint
A wife may validly enter into purchases (which are, of course,
contracts), whether her husband consents to or authorises them or
not. If the marriage is in community of property, bills for household necessaries will have
to be settled by the joint estate of the parties. If the couple
are married out of community of property, they will be jointly
and severally liable for these debts; thus a trader who has sold
goods on credit to a wife may sue either the wife or the husband
if the debt is not settled.
If a couple live together as if they were married, whether
they are divorced or never were married, both will be liable for
household necessaries (in some cases, however, the woman may be
able to bind her partner to payment).
In every case, whether the pair are married or not, there must
be a common household (the woman must not be living separately
from the man) for this contractual liability to arise.
If the husband is under a duty to support his wife, as is
usually the case, this duty does not necessarily end if the
couple separate. The husband remains liable to support her unless
the separation is due to her fault.
If the wife buys goods on credit in such circumstances, the
shopkeeper is still able to look to the husband for payment.
What are 'household necessaries'?
The wife's authority is not limited to the purchase of
necessities of life, for example, staple foods and basic
clothing. The term covers all those contracts that the court may
consider reasonable, having regard to the circumstances of the
While the wife of a successful professional man could consider
expensive clothing or imported foods to be household necessaries,
the wife of a poorly paid artisan may be limited to little more
than the basics of life.
The wife's authority extends to the purchase of necessities
for everyone in the common household, even if they are not
children or relatives.
What is a fair share?
Spouses who married out of community of property are jointly
and severally (that is, each fully) liable to traders for the
payment of any debts incurred by either of them for household
necessaries. Either of the spouses may be called upon to pay such
However, Section 23 of the Matrimonial Property Act provides
that where one of the spouses has paid more than a fair share of
the expenses of the joint household, he or she can recover the
excess contribution from the other spouse. This statutory
provision applies only to those spouses married prior to the
promulgation of the 1984 Act.
If the spouses were married after that date, they will still
have to contribute a fair share towards the costs of running the
common household, but there is no right of recovery for an excess
contribution unless by prior agreement.
Generally, a fair share is calculated according to the means
of a spouse. A husband whose financial position is twice as
strong as that of his wife would be liable for two-thirds of the
cost of household necessaries, while his wife would have to
If the wife has no means, the husband must bear the entire
burden of running the common household.
Couples who married after the commencement of the Act should
regulate their liability for household necessaries in their
antenuptial contract. If not, one spouse might contribute a great
deal more than the other and, in the event of a dispute, be
unable to claim any refund for the excess contribution.
Joint administration: what it means
All couples married without an antenuptial contract administer
their joint estate together. This means that either party can,
subject to certain safeguards, enter into transactions involving
the commonly owned property.
These safeguards are important and they include:
WRITTEN CONSENT These are the acts one spouse
may not perform without the written consent of the other. The
principal ones are:
- Alienating (for example, selling), mortgaging or granting
a servitude over land (a house is considered part of the
- Entering into a contract to alienate, mortgage or grant a
servitude over land;
- Alienating or pledging investments such as shares, stock,
debentures, insurance policies, mortgage bonds, fixed
deposits or similar assets;
- Alienating or pledging jewellery, coins, stamps,
paintings or other assets held mainly as investments;
- Withdrawing money in the name of the other spouse in any
financial institution or Post Office Savings Bank;
- As buyer or lessee, entering into a credit agreement or
leasing transaction to which the Credit Agreements Act,
1980, applies (see borrowing);
- As a purchaser, entering into a contract to which the
Alienation of Land Act, 1981, (see property, buying; property, selling),
- Binding himself or herself as surety (see credit guarantee).
Clauses 2, 3, 7 and 8 do not apply if the act is performed by
a spouse in the ordinary course of his or her profession, or in
the carrying on of a trade or business. Furthermore, clause 3
does not apply to a sale of listed securities on the Stock
Exchange and the cession or pledge of listed securities in order
to buy listed securities, and to the alienation, cession or
pledge of a deposit in his or her name in a bank or other savings
In cases 2 to 7 the consent may be given within a reasonable
time after the Act. In cases 1, 2, 6, 7 and 8 the written consent
has to be in respect of the particular action and requires two
Consent not needed in writing
Although certain acts may not be performed by one spouse
without the consent of the other, permission need not always be
Such instances include:
- Disposing of or pledging household furniture or other
- Receiving money due as:
- Remuneration, earnings, bonus, allowance,
royalty, pension or gratuity for professional
services of the other spouse or the carrying on
of a trade or business by him or her;
- Damages for loss of income;
- An inheritance, donation, bursary or prize left,
bequeathed, made or awarded to the other spouse;
- Income from the separate property of the other;
- Dividends or interest on or the proceeds of
shares or investments in the other's name;
- The proceeds of any insurance policy or annuity
in favour of the other spouse.
- Donating an asset of the joint estate or disposing of it
without value, except so far as it does not unreasonably
prejudice the other spouse's interests in the joint
estate and also is: neither one of the acts mentioned
above requiring written consent; nor one that involves
disposing or pledging of furniture or other effects.
In determining whether a donation or alienation as set out in
clause 3 above does not or probably will not unreasonably
prejudice the interests of the other spouse, the court has to
look at the value of the property, the reason for the donation or
disposition, the spouses' financial and social standing and
standard of living, and any other relevant factor. Consent to an
item falling under clause 1, 2 or 3 above may be given within a
reasonable time after the Act.
A spouse married in community of property needs the written
consent of the other spouse to institute or defend legal
proceedings against a third person, except:
- In respect of the separate property of either spouse;
- For recovery of damages other than for financial loss
caused by a delict (civil wrong) against him or her (for
- In respect of a matter relating to his or her profession,
trade or business.
If consent cannot be obtained
If a spouse withholds consent or if for any other reason
consent cannot be obtained, the other spouse may apply to the
relevant provincial or local division of the Supreme Court or to
a magistrate's court for an order dispensing with consent.
The court may choose to dispense with it if it is satisfied
that consent is being unreasonably withheld or, in any other
case, ought to be dispensed with. If a provincial or local
division of the Supreme Court is satisfied that it is necessary
to protect a spouse's interest in the joint estate, it may on his
or her application suspend any power the other spouse may
If the spouse acts without consent
Provided that the third party did not know and could not
reasonably have known of the position, the transaction is deemed
to have been with the required consent or, as the case may be,
the errant spouse is deemed to have been competent to enter into
the transaction. However, the latter, where he or she is at
fault, will be penalised on a division of the joint estate if the
estate has suffered a loss.
Dividing the joint estate
If one spouse behaves in such a manner that the interests of
the other are being (or will be) seriously prejudiced, the other
spouse can apply to court to have the joint estate divided
immediately into equal shares or on whatever other basis that the
When ordering division, the court may also order that
community of property should cease to operate and be replaced by
some other matrimonial property system, subject to certain