An overview of Civil Union & Partnerships by Hammond Pole Attorneys
Hammond Pole Attorney, Ardene Nel provides an overview of Civil Union Marriages & Partnerships in this article.
What is a Civil Union?
Civil Union marriages were introduced in South Africa by way of the Civil Union Act, 2006. This specific Act, is the act which legalised same sex marriages. Parties who enter into a Civil Union Marriage or partnership have the same rights, legal consequences and responsibilities, as parties who have entered into a civil marriage. A Civil Union marriage or Partnership can either be a marriage or partnership between a party of the same sex, or those of the opposite sex.
What are the different types of civil union marriages?
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.
What are the requirements for a civil marriage or partnership?
Parties must be both 18 years or older;
Entering into a civil union partnership must be voluntary;
A party in a civil marriage may not conclude a marriage under the Marriage Act or Customary Marriage Act;
A civil union may only be registered by prospective civil union partners, who would apart from the fact that they are of the same sex, would not be prohibited by law to enter into this marriage or partnership.
1. Marriage in community of property
When it comes to this type of marriage, it is important 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. However with the exception that the only way a spouse may enter into an agreement without the consent of the other spouse, is when the act is specifically excluded from the marriage. e.g.- if a spouse inherits in terms of a will and the will specifically excludes the marriage.
2. Marriage out of community of property with the inclusion of the accrual system
What is meant by accrual?
The accrual system is a formula that is 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. This means that each spouse can act without their other spouses’ consent.
3. 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. This 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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