To establish the contractual capacities of the parties who enter into an agreement, it is of utmost importance to first confirm these parties’ marital status. This will determine the positions in which the parties can act in terms of concluding an agreement.
Civil marriage is a marriage that entered into between a man and a woman. More particular, the parties are of the opposite sex.
In terms of South African Law, there are three types of Civil Marriages, and they are as follows:
– A marriage in community of property;
– A marriage out of community of property, with the inclusion of the accrual system;
– A marriage out of community of property, without the accrual system
Marriage in community of property
When it comes to this type of marriage, it is essential to remember that parties who have entered into a marriage in community of property have limited contractual capacity concerning certain acts.
What does “limited contractual capacity” mean?
Due to the spouses being married to each other in community of property, it is seen that the spouses have one joint estate, which means that they share equal powers when it comes to the disposal of assets.
The only way a spouse may enter into an agreement without the other spouse’s consent is when the act is expressly excluded from the marriage. e.g., if a spouse inherits in terms of a will and the will specifically exclude the marriage.
Marriage out of community of property with the inclusion of the accrual system
What is meant by accrual?
The accrual system is a formula used to calculate how much the spouse with the larger estate must pay the smaller estate if the marriage comes to an end through death or divorce.
It is important to remember that only property or assets acquired during the marriage can be considered when calculating the accrual.
What does it mean when you are married out of community of property with the accrual system?
This type of marriage is deemed to be a marriage where both spouses have separate estates. Which means that each spouse can act without their other spouses’ consent.
Marriage out of community of property with the exclusion of the accrual.
This type of marriage is deemed to be a marriage where both spouses have separate estates. Which means that each spouse can act without their other spouses’ consent. It is important to note that this time of marriage means that there is no automatic sharing in each other’s wealth.
What happens when the marriage is not registered at Home Affairs?
Should these marriages not be registered at Home Affairs, the parties will be deemed to be unmarried.
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Article by Ardene Nel