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THE IMPACT OF MATRIMONIAL PROPERTY SYSTEMS ON DECEASED ESTATES

Extracts from Justice College guide prepared for the Department of Justice by M. Meyer (June 2012)

INDEX

1. Types of Matrimonial Property Systems in terms of the Matrimonial Property Act, 88

of 1984

a) Marriages in Community of Property

b) Marriages out of community of property

c) Marriages out of Community of Property with Accrual

2. Customary Marriages

a) Registration of Customary Marriages

b) Property consequences of customary marriages before the Act 120 of 1998

c) Property consequences of customary marriages after the Act 120 of 1998

d) The granting of limited legal status being accorded to customary relationships

3. Marriages concluded in terms of Religious Rites.

a) Muslim marriages

b) Hindu Marriages

4. Marriages and unions concluded in terms of the Civil Union Act 17 of 2006

5. The position of cohabiting partners

a) Same- sex cohabitation

b) Heterosexual cohabitation

c) Foreign Marriages

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This is a brief introduction to the different types of marriages, unions and relationships that

impact on the Administration of Deceased Estates.

1. Types of Matrimonial Property Systems in terms of the Matrimonial

Property Act, 88 of 1984

a) Marriages in Community of Property

Default marital system in South Africa. There is one joint estate that belongs to the

spouses in equal undivided shares. On marriage the separate estates are

automatically merged in to one joint estate for the duration of the marriage. Spouses

have equal authority to administer the estate. Receives full legal recognition.

EXCEPTIONS:

i) Assets excluded in an ante nuptial contract

ii) Assets excluded by will or deed of donation

iii) Assets subject to a fideicommissum or ususfruct

iv) Benefits under the Friendly Societies Act 25 of 1956 (section 17)

v) Satisfaction recovered by spouse for personal injuries

vi) Costs in a matrimonial action

vii) Assets replacing an excluded assets

b) Marriages out of community of property

An ante nuptial contract must be concluded and registered enforceable against third

parties. When a spouse who was married out of community of property dies the estate of

the deceased spouse is administered. If a joint will is made and the separate estates massed

then the massed assets are reflected in the inventory and the liquidation and distribution

account. Receives full legal recognition

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c) Marriage out of Community of Property with Accrual

The Matrimonial Property Act 88 of 18984 stated that an ante nuptial contract be entered

into. Since the 1st November 1984 only White, Coloured and Asian people could elect the

accrual system as being applicable to their marriage. This was amended and included Blacks

on the 2 December 1988.

The accrual system ensures that the net assets that each spouse accrues during marriage

will be shared equally between the spouse s upon dissolution of the marriage by death or

divorce. The debts are not shared but profits alone. The accrual is the difference between

the net value of the estate at the commencement and dissolution of the estate. Receives full

legal recognition.

Civil marriages entered into between black South Africans in terms of the Black

Administration Act 38 of 1927 prior to 2 December 1988 are automatically out of

community of property unless one month prior to marriage a joint written statement

whereby the intention to marry in community of property and of profit and loss was made

before a magistrate, commissioner or marriage officer. Civil Marriages after the 2 December

1988 a have equal access to the different matrimonial property systems.

A civil marriage between black KwaZulu- Natal citizens contracted after the commencement

of the Act (27 March 1987) shall produce the legal consequences of a marriage out of

community of property between the spouses, provided that the intending spouses may at

any time within one month of the celebration of such marriage declare jointly before any

Commissioner, or Magistrate, or other Marriage Officer, that it is their intention and desire

that community of property and profit and loss shall be included in their marriage, except

with regard to any land in the location held under quitrent tenure which land shall be

excluded from such

community.

Section 35(1) of the KwaZulu Act was only repealed by Act 200 of 1993 with effect from 27

April 1994. The Marriage and Matrimonial Property Law Amendment Act 3 of 1988 which

made the Matrimonial property Act 88 of 1984 applicable to Civil marriages between Black

persons governed by section 22(6) of the Black Administration Act, 38 if 1927 did not repeal

section 35(1) of the KwaZulu Act. Consequently KwaZulu --citizens married between 2

December 1988 and 27 April 1994 are married out of community of property in terms of

Section 35(1) of the KwaZulu Act, 16 of 1985.

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2. CUSTOMARY MARRIAGES

The Recognition of Customary Marriages Act 120 of 1998 came into operation on 15 November 2000, and gives full legal recognition to customary marriages for the first time

in the history of South Africa. Section 1 of the Act defines a ‘customary marriage’ to mean “a marriage concluded in accordance with customary law, while ‘customary law’ is defined as “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those people”. Section 2(1) of the Act recognizes customary marriages entered into before the commencement of the Act, provided that such marriages were validly concluded in terms of customary law and existed at the commencement of the Act. According to section 2(3) of the Act, if a person was a spouse in more than one validly concluded customary marriage as at date of the commencement of the Act, all the marriages are recognized as valid marriages. Polygamous marriages are thus given legal recognition. Section 2(2) of the Act gives recognition to customary marriages entered into after the Act, provided the marriage complies with the requirements of the Act. Prior to the commencement of the Act, customary marriages (better known as

customary unions) did not enjoy the same status as civil marriages concluded in terms

of the Marriage Act 25 of 1961.

2.1Registration of Customary Marriages

Section 4 states that all customary marriages must be registered, those entered into

after the commencement of the Act must register the marriage within three months

after the conclusion of the marriage.

Customary marriages that were concluded before the commencement of the Act were

to have been registered with the Department of Home Affairs by the 31st December

2010. Those marriages which have not been registered have to apply to court for an

order authorising late registration.

Registration is peremptory in terms of the Act.

Kambhule v The Master and Others 2007 (3) SA 403 E , held that a customary marriage

concluded in accordance with section 1 of the Recognition of Customary Marriages Act

that was concluded prior to the act was valid despite not being registered this was

confirmed in Gama v Mchunu and Others case no 37362/10.

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The Master of the High Court requires that proof that the customary marriage exists

when an estate is reported. The marriage may be disputed by interested parties. This is

when proof of registration of a customary marriage is called for by the Master.

The Reform of Customary Law of Succession and Regulation of Regulated Matters Act

11 of 2009 states in Section 5 (1) that if any dispute or uncertainty arises in connection

with the status of any person in relation to a person whose estate or part thereof must

in terms of the Reform of Customary Law of Succession and Regulation of Regulated

Matters Act 11 of 2009 devolve in terms of the INTESTATE SUCCESSION ACT. The

Master may then make a determination to resolve the dispute or uncertainty. The

Master may call for an inquiry into the matter held by a magistrate or traditional leader

in the area where the Master has jurisdiction.

If the surviving spouse cannot furnish proof of registration of the customary marriage(s),

the Master can convene a family meeting between the families of the deceased and

surviving spouse(s) to confirm the existence of the marriage(s). If at the family meeting

agreement is reached that the marriage did exist then the minutes of the meeting will

suffice as proof of a marriage(s) between the deceased and the spouse(s).

The Masters acceptance of the minutes of the meeting is not a declaration on the

validity of the marriage or an order to register the marriage. This must be seen as

assistance to the spouse who is unable to afford a High Court application for an order

for late registration of a customary marriage that is not in dispute.

2.2 Matrimonial Property Consequences of Customary Marriages

concluded before the Act 20 of 1998.

Customary Law does not subscribe to a particular marital property system but to a

family aligned property system. Customary Marriages have been dealt with for estate

purposes as being out of community of property. However in GUMEDE v THE

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS CASE NO CCT

50/08(2008) ZACC23 held that section 7(1) of the Recognition of Customary Marriages

Act was contrary to the Constitution and invalid relating to provisions about

monogamous customary marriages. Now monogamous customary marriages are

deemed to be in community of property. A decision on Polygamous customary

marriages was not made in the decision and will continue to be deemed as marriage out

of community of property. The Act does enable a customary marriage spouse to apply to

court to change the marital regime if a) there are sound reasons for the change, b)

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written notice is given to all creditors’ owed amounts more than R 500 and c) no one will

be prejudiced by the change. If there are other spouses they must be joined to

application to ensure no spouse is being prejudiced.

2.3 Matrimonial Property Consequences of Customary Marriages concluded

after Act 20 of 1998.

A monogamous customary marriage is seen as a civil marriage in community of property

unless an ante nuptial contract is entered into excluding community of property and

community of profit and loss.

A husband in a customary marriage who wishes to enter into a further customary marriage

with another woman after the commencement of Act must comply with Section 7(6) which

states that:

Section7(6) “A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.”

Mayelane v Ngwenyana and another (474/11) [2012] ZASCA 94 (1 June 2012) held that

non-compliance with section 7(6) does not invalidate the subsequent marriage. This further

marriage would be deemed out of community of property. The matrimonial property

system between the husband and the first spouse continues and is not terminated by the

further customary marriage. This makes it possible for a man to be married in community of

property to his first wife and out of community of property to his second wife.

For the purposes of Succession, where the death notice states

a) Deceased was married under customary law

b) Marriage was polygamous and

c) The second or subsequent marriage was concluded after the commencement of

the Act

The Master has to enquire whether the provisions of section 7(6) were complied with

or not. If the provisions of section 7(6) were complied with then the Master will call for

the written contract which regulates the deceased’s marriage, duly approved by the

court.

If not complied with the Master must call for confirmation of the matrimonial

property system of the first or previous marriage.

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2.4 The relationship between civil and customary marriages and their

impact on deceased estates.

2.4.1 Effect of a civil marriage to a third person on an existing customary

union (Before 2 December 1988)

Only civil marriages proper marriages, spouses in customary marriages not

regarded as being legally married. In the instance where a husband of a

customary union marry another woman by civil rites then the civil marriage

terminated the prior customary union(s). Known as the “ discarded spouse”

The discarded spouse and her children, in terms of section 22(7) of the Black

Administration Act 38 of 1927, for the purposes of Succession the status of the

widow and her children was deemed equivalent to that of customary law union.

The Master will deem both the “discarded spouse” and her children and the civil

spouses and her children as spouses and descendants of the deceased for the

purposes of intestate succession.

2.4.2 Effect of a civil marriage to a third person on an existing customary

union: after 2 December 2008 until 15 November 2000.

The Marriage and Matrimonial Property Law Amendment Act 3 of 1988 came into

operation on the 2 December 1998.

Partners to a monogamous customary marriage could marry one another by civil

rites, a ‘spouse’ could not validly marry a third person by civil rites. During the

subsistence of the customary union.

Should a ‘spouse’ in a customary union enter into a civil marriage without first

dissolving the customary union then the civil marriage will be invalid. [ Thembisile

and Another v Thembisile and Another 2002 (2) SA 209 ( T), Mrapukana v Master

of the High Court and Another 2008 JOL 22875 (C), Netshituka v Netshituka

(426/10) [2011 ZASCA 120 (20 July 2011]

Section 22(10 of the Marriage and Matrimonial Property Law Amendment Act

prohibited a husband of a customary marriage from entering a civil marriage with

another woman during the subsistence of the customary marriage. Customary

union had to be dissolved before entering into the civil union.

The Master will have to determine which of the marriages was valid at the date of

death of the deceased. If the deceased entered into the customary union and then

into a civil union with another woman without first dissolving the customary

union then the civil union is invalid and the customary marriage valid.

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2.4.3 The position after 15 November 2000

The Recognition of Customary Marriages Act 120 of 1998 came into operation

on the 15 November 2000.

Section 2(1) states that a marriage that is valid marriage at customary law and

existing at the commencement of the Act is a recognised legal valid marriage.

The partners to the customary union can enter into a civil union with each other

if neither is a spouse in a subsisting customary marriage with any other person.

No spouse of a civil marriage may enter into a marriage (civil or customary)

during the subsistence of that marriage.

2.4.4 The Reform of Customary Law of Succession and Regulation of Related

matters Act 11 of 2009

Act commenced on the 20 September 2010

Section 2(1) states that subject to S2(2), the INTESTATE SUCCESSION ACT regulates

the devolution of deceased estates of any person subject to a customary law and

dies after the commencement of the Act provided the asset of the deceased is not

dealt with in a will.

Section 2(2) contains three interpretation rules iro the INTESTATE SUCCESSION ACT

a) Section 2(2) (b) a woman other than spouse of the deceased with whom he had

entered into a union in accordance with customary law for the purposes of providing

children for his spouse’s house will be regarded as children of the deceased.

b) Section 2(2)(c) if the deceased was a woman who was married to another woman

under customary law for the purposes of providing children for the deceased’s

house, that other woman must, if she survives the deceased be regarded as a

descendant of the deceased.

Section 3 states when the deceased’s marital status was polygamous then a spouse

who survived the deceased must be construed as including every spouse and woman

referred to under S2(2) (a-c) of the Reform of Customary Law of Succession and

Regulation of Related Matters Act.

The interpretation challenge does exist where Section2(2) (b) and ( c) relating to

seed- raising women and women involved in woman to woman marriages are

regarded as descendants of the deceased when applying the Intestate Succession

Act and Section 3(1) of the Act where the same women must be regarded as

spouses for the purposes of intestate succession.

The Masters of the High Court have taken a management decision that they would

interpret the contradiction in the provisions of Section2(2)( b) and( c) and Section 3

(1) of the Reform of Customary Law of Succession Act to regard the woman

referred to in Section2 (2) (b) and ( c) of the Act as spouse of the deceased in terms

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of Section 1 of the Intestate Succession Act read with Section3 (1) of the Reform of

Customary Law of Succession Act, but not as descendant of the deceased.

3. Marriages concluded in terms of Religious Rites

3.1 Muslim Marriages

South African law does not recognise Muslim marriages as valid marriages unless

the spouses register a civil marriage as well.

Some Muslim marriages are polygamous.

The Muslim Marriages Bill was developed. The proposed legislation aims at

recognising Muslim marriages and regulating the proprietary consequences of

such marriages.

The courts have granted Muslim partners in Muslim marriages limited legal

recognition for the purposes of intestate succession and maintenance in terms of

the Maintenance of Surviving Spouses Act 27 of 1990.

In Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) the Constitutional

Court held that the word ‘spouse’ as used in the Intestate Succession Act 81 of

1987 and the word ‘ survivor’ as used in the Maintenance of Surviving Spouses

Act 27 of 1990 include the surviving spouse of a monogamous Muslim marriage.

In Hassam v Jacobs NO and Others (2008) JOL 22098 (C) the court found no

jurisdiction for excluding the widows of polygamous Muslim marriages for the

provisions of the Maintenance of Surviving Spouses Act 27 of 1990 and the

Intestate Succession Act of 81 of 1987. The court found that excluding the

widows would be unfair discrimination and conflict with Section 9 of the

Constitution.

Muslim marriages are generally regarded as being out of community of property.

The accrual system does not apply as the law does not recognise Muslim

marriages.

3.2Hindu Marriages

Hindu religious marriages are also not recognised as being valid marriages.

A civil union can be registered simultaneously with the Hindu marriage

however the civil registration is recognised and not the religious marriage.

The courts have granted limited legal recognition for the purposes of

succession.

Govender v Ragavayah and Others 2009(4) SA 178 (D) the court ordered

that the word ‘spouse’ as used in section 1 of the Intestate Succession Act 81

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of 1987 should include the surviving partner to a monogamous Hindu

marriage.

Hindu marriages are regarded as being in community of property.

4. Marriages and unions concluded ito the Civil Union Act 17 of 2006

The Civil Unions Act 17 of 2006 came into operation on the 1 December

2006.

This act gave effect to the order in the Constitutional Court decision Minister

of Home Affairs v Fourie (Doctors for Life International, Amici Curiae);

Lesbian and Gay Equality Project v Minister of Home Affairs 2006(1) SA 524

9CC) the court held that the common law definition of “marriage” as being

inconsistent with the Constitution and invalid in that it does not permit same

sex couples to enjoy the status and benefits accorded to heterosexual

couples.

Any person 18 years or older may enter into a civil union ito the Act and

register their marriage as a marriage or civil partnership.

Once a civil union is registered one cannot register a marriage under the

Marriages Act 25 of 1961 or the Recognition of Customary Marriages Act

A civil union is one of community of property if an ante nuptial contract is not

entered into.

5. Cohabiting Partners

5.1 Same –sex Cohabitation

Gory v Kolver NO and Others 2007(3) BCLR 249) The Constitutional Court

ruled that that partners in a permanent same- sex life partnership should be

regarded as “spouses” for the purposes of Intestate Succession.

Persons who died before 1 December 2006 and were partners in a same sex

partnership at the time of their death should be regarded as spouses for the

purposes of Intestate Succession.

Persons who died on or after the 1 December 2006 should only be regarded

as “spouses” if they had entered into a marriage or civil partnership in terms

of the Civil Union Act.

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5.2 Heterosexual Cohabitation

Volks NO v Robinson and Others 2005 95) BCLR 4467 (CC) the court held

that where no marriage was concluded between the partners the partner

could not be regarded as a surviving spouse in terms of the Maintenance of

Surviving Spouses Act.

There was no obligation of support between unmarried persons.

6. Foreign Marriages

Foreign marriages are deemed valid in South Africa if they meet two requirements:

a) The marriage is valid in terms of the law and formalities of the place where the

marriage was concluded.

b) There is no rule in the South African law which renders it null and void.

Documentary proof of the matrimonial property regime which governed the

marriage of the deceased must be lodged with the Master.

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