You have questions………we have answers
My friend’s wedding ceremony dragged on for almost an hour. What’s the average length of one of your ceremonies?
20 minutes. And that includes the signing of the Register. Nuff said.
What documents do I need in order to have my marriage or civil partnership registered?
IF BOTH PARTIES ARE SOUTH AFRICAN CITIZENS:
IF ONE OR BOTH PARTIES WERE MARRIED BEFORE:
IF ONE OR BOTH OF YOU IS A FOREIGN NATIONAL:
It is ESSENTIAL to have copies of all documents if not before the day of the wedding then BEFORE the ceremony begins on the day. No exceptions can be made to the above required documentation. ACCORDING TO SOUTH AFRICAN HOME AFFAIRS We WILL NOT BE ALLOWED TO REGISTER YOUR MARRIAGE WITHOUT ALLTHE ABOVE ATTACHMENTS. Should the documents not be presented to the Officiant the ceremony will still proceed, but your marriage will NOT be legally registered, nor will you receive a Marriage Certificate.
Important Notice To All SA Citizens Marrying a Foreign National:
According to legislation ALL such couples marrying in South Africa MUST secure an appointment for an interview with an Immigration Officer in South Africa BEFORE the marriage takes place. Both prospective spouses must be interviewed. Only upon receipt of a declaration letter from the Immigration Officer can we go ahead with the marriage. Home Affairs will NOT register a marriage without the letter as well as ALL supporting documentation. No exceptions can be made. Since we operate in Ballito ALL interviews MUST be carried out at Durban Immigration office since we are required to collect the letter personally – they will not release it to you. Please contact Immigration directly on 031 308 7907 / 7938 to secure an appointment for your interview at least 7 days prior to your wedding date. There is no need for an interview to be conducted where BOTH prospective spouses are foreign nationals.
How much is required to put down to hold our wedding date?
To book a wedding with us, we require two things. A contract and a deposit of 20%. This guarantees that your date is set and no one else can get it! Lots of brides and grooms are booking their dates well in advance, and the good vendors get booked quickly. Our advice, book as soon as you know your date.
The wedding was fun but what happens next?
Go on your honeymoon and have a good time! We'll be fighting crowds at the Department of Home Affairs working vigorously, drinking lots of RedBull like its going out of style, getting your marriage registered. You won’t have to go in at all. If you change your surname we’ll take care of that too, in which case, all you have to do is go in at a time convenient to you to apply for a new ID card/passport etc. They will be issued to you in your new married name.
Speaking of names, what is the law regarding name changes?
In terms of section 26 (1) of the Birth and Death Registration Act, as amended, a person after marriage may:
(a) Assume his/her partner’s surname;
(b) Resume a surname, which he/she bore at any prior time,
(c) Join his/her birth surname or previous married surname with that of his/hers/partner's, or,
(d) Retain his/her name.
I’ve heard so many conflicting stories about the Civil Union Act and we don’t know if I want my marriage to be registered under such an act. How will this affect me if I am NOT in a same-sex marriage?
Fiona is registered under the Civil Union Act of 2006. The Act allows anyone – regardless of their sexual orientation – to marry either through a civil marriage, civil partnership or a customary marriage. Should you experience problems with Home Affairs when you apply for a new ID book or passport, please show them this note:
The Civil Union Act, 2006 (Act No. 17 of 2006) allows for a civil union to be contracted under the act by a same-sex or opposite-sex couple, and they may choose to form it either as a marriage or as a civil partnership. Whichever name is chosen, the legal consequences of a civil union are the same as those of a marriage under the Marriage Act. Any reference to marriage in any law is deemed to include a civil union, and any reference to a husband, wife or spouse is deemed to include a spouse or partner in a civil union. Foreign couples marrying in RSA are entitled to a hand-written Unabridged Marriage Certificate upon application. Any Home Affairs staff member who refuses you a new ID, passport or Unabridged Marriage Certificate on the strength of a Civil Union Marriage may be directed to the following Home Affairs official: Mshiyeni Nzuza, Acting Regional Office Manager: Ethekwini Department Of Home Affairs. Tel: 031 308 7901. Cell: 073 262 8499. Fax: 086 568 2759. Email: email@example.com
Raymond is registered under the Marriage Act - a very old-fashioned Act that does not allow for same-sex unions :-(
I don’t want to have any references to ‘honour and obey’ etc in my ceremony. How can I guarantee that?
Easy. We love it when our couples are hands-on with their ceremony. We give you the freedom to dictate to us and to share your vision with us. We’ll advise and help you to come up with a ceremony that reflects the two of you while keeping it classy and ensuring it flows.
Do we have to be married/sign the Register under cover?
Nope. Not if Fiona presides over the marriage. That applies to the Marriage Act and she is registered under the Civil Union Act, which states, and we quote: “A marriage officer must solemnise and register a civil union in a public office or private dwelling-house or on the premises used for such purposes by the marriage officer, with open doors and in the presence of the parties themselves and at least two competent witnesses, but the foregoing provisions of this subsection do not prohibit a marriage officer to solemnise a civil union in any place other than a place mentioned 10 herein, if the civil union must be solemnised in such other place by reason of the serious or longstanding illness of, or serious bodily injury to one or both of the parties.” It makes no mention of the need to be under cover. Fiona has married couples on beaches, on the tops of mountains in Big-5 game reserves, etc etc. Should Raymond preside, then, yes, cover will be required.
I’m not into sharing. How do I protect my assets after marriage?
This is going to be a pretty long-winded answer, but since it’s the most commonly asked we feel it warrants it.
In accordance with the Matrimonial Property Act 88 of 1984, which came into operation on 1 November 1984, there are three forms of matrimonial property regimes in South Africa, namely:
Marriages in community of property
Marriages out of community of property without accrual
Marriages out of community of property with accrual
Marriages in community of property
Marriage in community of property is undoubtedly the cheapest and most popular form of all the matrimonial regimes, although deeply flawed. No ANC is required, so if you marry without an antenuptial contract, you will by default be married in community of property. In this form of marriage, the spouses’ estates (what they own/assets and any debt/liabilities) are joined together and each has the right of disposal over the assets; they are equal concurrent managers of the joint estate. Each has an undivided or indivisible half share of the joint or communal estate.
Advantages of marriage in community of property
You don’t have to enter into a special contract before being able to get married.
When you are the financially weaker spouse, you get to share in the assets of your spouse.
Disadvantages of marriage in community of property
When you are the economically stronger spouse, you have to share your assets with your spouse.
You are jointly liable for each other’s debts. This is particularly problematic on insolvency.
The joint administration of the estate is rather complicated.
When a marriage starts to fail, it can become difficult to obtain joint consent.
One of the most devastating consequences of a marriage in community of property is that when one spouse becomes insolvent (cannot pay his/her debts), both spouses will be declared insolvent, because there is one communal estate. If there is a court order against either one of the spouses, the communal estate can be lost.
The consequences of divorce when married in community of property
Upon divorce, the assets of the joint estate as at the date of divorce will be divided equally between the parties, unless a spouse claims forfeiture and the court grants such a forfeiture order.
Marriages out of community of property
This matrimonial property regime involves an ANC (i.e. an agreement entered into before the marriage) where community of property and profit and loss are excluded. There is no joining of the spouses’ estates into one joint estate. Each spouse has his/her own separate estate, consisting of his/her premarital assets and debts, and all the assets and debts he/she acquires during the marriage. They each administer their own separate estates and have full and exclusive control over their own property. By marrying out of community of property, the spouses choose to keep their estates separate and whatever assets and liabilities they individually had before the date of marriage will remain part of their separate estates. The spouses can, however, agree to include the accrual between them so that both spouses will share equally in the growth during the marriage of each other’s separate estates.
Antenuptial contracts (ANC)
A marriage out of community of property is achieved by drawing up an ANC. The ANC will be the most important contract that a married couple will sign in their lifetime. Entered into before marriage, the purpose of the contract is to change some or all of the automatic financial consequences of marriage.
The ANC allows the husband and wife to tailor-make their very own matrimonial property regime. They can include any provisions they like in their ANC, as long as the provisions are not against the law, good morals or the nature of marriage. ANC’s are problematic to change as they dictate the financial and proprietary consequences of the couple’s future and can affect the rights of the couple’s creditors.
Couples may enter into one of two types of ANC:
an ANC that excludes community of property, community of profit and loss, and the accrual system; or
an ANC that excludes community of property and community of profit and loss, but includes the accrual system.
The ‘accrual’ is the extent to which the husband and wife have become richer by the end of the marriage, in other words, the amount by which the spouses’ joint wealth has increased over the period of the marriage. When married according to the accrual system, each spouse acquires a certain right to the other’s property on divorce. Neither system is superior to the other. The marital property regime chosen (i.e. with or without accrual) must suit the couple’s relationship dynamic and specific needs. Note that the ANC is a normal contract, so all the rules as to fraud, duress and mistake apply.
The consequences of divorce when married out of community of property without the accrual after 1 November 1984
In a marriage out of community of property without the accrual contracted after 1 November 1984, there can be no claim for a transfer of assets. The argument is that there are now three matrimonial property regimes to choose from, and if the parties willingly decided to marry out of community of property and without the accrual system, one of the parties cannot later request a redistribution of assets. In such a regime, upon divorce, each party will retain their separate estates, i.e. what they had upon marriage and including all growth to the separate estate that occurred during the marriage, minus any losses that may have been sustained. For example, if the husband came into the marriage with R10 000, he would leave with R10 000 + profits & losses.
A spouse who contributed to the other spouse’s estate, whether in cash or otherwise, will have a difficult time proving that he/she is entitled to anything from their ex’s estate on divorce as contributions play no role if the parties are married without the accrual. If, for example, the wife stays home to raise the children and does not contribute financially towards the marriage and the other spouse works and accumulates assets, the wife may find herself with nothing and no claim to her husband’s assets.
Advantages of marriage out of community of property without the accrual
Each spouse keeps his/her own assets and is free to deal with his/her own estate as he/she likes.
Spouses are generally not liable for each other’s debts. Thus, if one spouse becomes insolvent, creditors cannot touch the assets of the other spouse.
The financially stronger spouse does not have to share his/her estate with the weaker spouse. This is subject to judicial discretion and forfeiture of benefits.
Disadvantages of marriage out of community of property without the accrual
The economically weaker spouse, traditionally the woman, does not get to share in the estate of the stronger spouse, even though she may have indirectly contributed to the estate by running the household and looking after the children. This is subject to judicial discretion and forfeiture of benefits.
An ANC has to be entered into in order to marry out of community of property. This costs money, and the parties must pay the fees of a notary and costs of registration.
Marriages out of community of property with the accrual
After 1984, anyone entering into an ANC that excludes community of property and community of profit and loss is automatically married under the accrual system. Spouses may, however, exclude the accrual system in their ANC, but if they do not do so expressly, the accrual applies. When the accrual is included, a spouse will be entitled to share in the growth of the two estates at divorce.
This is surely the most appropriate and ideal way to marry. All the assets that each party owns prior to the marriage can either be excluded or included in the accrual. If no assets are excluded in the ANC, the value of each party’s estate at the commencement of the marriage is deemed to be nil.
The consequences of divorce when married out of community of property with the accrual
Accrual is a way to ensure that both spouses in a marriage gain a fair share of the estate once the marriage comes to an end. The accrual system does not apply automatically to all marriages out of community of property. For the accrual system to apply, the ANC must be drafted in a certain way. The accrual system incorporates a calculation that is applied when the marriage is dissolved by divorce. The spouses will share the assets during the course of their marriage based on a particular calculation when the marriage is terminated.
The term ‘accrual’ is used to denote the net increase in value of a spouse’s estate since the date of marriage. In other words, what was yours before the marriage remains yours, and what you have earned during the marriage belongs to both of you. Because the right to share in accrual is exercisable only upon dissolution of the marriage, such a right is not transferable and cannot be attached by creditors during the subsistence of the marriage.
The following assets are not taken into account when determining the accrual (are not included in the net value of the estate):
Any asset excluded from the accrual system under the ANC, as well as any other asset that the spouse acquired by virtue of his/her possession or former possession of such asset.
Any inheritance, legacy, trust or donation received by a spouse during the marriage from any third party, as well as any other asset that the spouse has acquired by virtue of his/her possession or former possession of the inheritance, legacy, trust or donation, unless the spouses have agreed otherwise in their ANC or the testator/trix or donor has stipulated otherwise.
Any donation between the spouses.
Any amount that accrued to a spouse by way of damages (e.g. slander), other than damages for patrimonial loss or the proceeds of an insurance policy in respect of a dread disease.