This article is not intended to be a full exposition on the legal consequences of all marriages, but there appears to be a need to highlight certain practical inconsistencies that occur where various Deeds Registries apply certain principles differently. Furthermore. it is apparent that uncertainty prevails regarding certain marriage issues as they related to one or more of the former TBVC-countries or even in South Africa at different periods of time. This article should endeavour to at least start some legal debate as to the application of marriage law at certain periods in the current South Africa.
According to our law the patrimonial consequences of a marriage are governed by the law of the place where the husband was “domiciled at the time of marriage”. Generally, the South African Law rebuttably presumes that all marriages are “in community of property” unless excluded in a valid antenuptial or postnuptial contract. However, up until 2nd December 1968, civil marriages of “black persons" were in terms of section 22(6) of the Black Administration Act 38 of 1927 out of community of property, unless spouses made a joint written declaration before a magistrate, commissioner or a marriage officer within one month prior to their marriage,that they wished their marriage to be in community of property and of profit and loss. This was then the exact opposite of the consequences applicable to other civil marriages.
In terms of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, section 22(6) of the Black Administration Act was repealed, and the patrimonial consequences of civil marriages entered into by black spouses on or after 2nd December 1988 were brought in line to be exactly the same with other civil marriages. This meant that as at 2nd December 1988, all civil marriages, regardless of race or colour, were presumably In community of property unless otherwise stipulated in an antenuptial/postnuptial contract.
This change did not automatically change the civil marriages entered into prior to 2nd December 1988, but parties thereto were allowed to enter into and register a notarial contract to make the provisions of the Matrimonial Property Act applicable to their civil marriage (section 21(2) Act 88 of 1984). This was allowed up to 2nd December 1990, failing which the marriage consequences remain governed by section 22(6) of the Black Administration Act 38 of 1927.
The possibility exists that during the time of the TBVC states and other self governing territories various laws applied which could either be similar or different to what was in the then South Africa. This article will relate to what was the former Transkei.
After obtaining “independence” in 1976, various laws were enacted by the Transkei Legislature including the Transkei Marriage Act 21 of 1978 which came into operation on 02 July 1978. In terms of section 39 of this Act, the marriage of parties who got married while domiciled in the former Transkei was “out of community of property” unless parties entered into an antenuptial contract or have made a joint declaration before a magistrate or marriage officer in a prescribed Form, to make their marriage to be one “in community of property or profit and loss” prior to the solemnisation of the marriage. This meant that as from 02 July 1978, the date of commencement of the Act, a civil marriage entered into on or after this date in the former Transkei was automatically out of community of property unless an ANC or a declaration in terms of this Act was in existence to the contrary. This was so until the rationalization of the former Transkei Laws in 1996. The result of this is that a party to a marriage which was governed by the Transkei Marriage Act remains married out of community of property, if no antenuptial contract or joint declaration existed to the contrary.
Parties whose marriages were regarded as “out of community of property" in terms of either section 22(6) of the Black Administration Act or the Transkei Marriage Act remain out of community of property. If parties wish their marriages to be different they may apply to change their matrimonial system in terms of the provisions of section 21(1)of the Matrimonial Property Act 88 of 1984. There exists a challenge to Deeds registries and conveyancers alike, where a party was married out of community, in terms of these two pieces of legislation, and lost a marriage certificate. The certificates provided by the Department of Home Affairs usually refer to “civil marriage” without differentiating between in or out of community of property. The result is that a person who is reflected as married out of community of property in a deed in Umtata, based on the application of the Transkei Marriage Act may be reflected as married in community, on deeds registered in another Deeds Registry.
The question then is whether the affected parties, can in law be married out as far as registrations in the former Transkei are concerned and be married in as far as the new registration was effected, say in Pretoria after 1994. Alternatively, can parties alter the legal consequences to their marriage just by themselves either by lack of understanding or intentionally? Most definitely not!
It is hoped that examiners and conveyancers in all Provinces will take heed of the legal issues surrounding certain marriages.
As already alluded to, this article is not intended to be a full exposition on the legal consequences of various civil marriages, but merely intended to bring a practical problem to the attention of all.
Readers are also referred to the case of N P Gama-Mpantsha and Others v N H Mpantsha (case no 16/2011) Eastern Cape Division: Mtatha – Editor
Deputy Registrar of Deeds