Section 29(2) of our Marriage Act

Legally speaking, can I get married in a garden or on the beach?  

Unfortunately some uncertainty is caused by our Marriage Act vs a court ruling. The Marriage Act 25 of 1961 lists the requirements for a valid marriage. 

According to section 29(2) of the Marriage Act, a marriage officer should solemnize a marriage IN a

i.                   Church;

ii.                  Building used for religious service;

iii.                 Public office; or

iv.                 Private dwelling house with open doors.

In the case of Ex Parte Dow the couple married in a garden. The husband applied to court for an order to declare the marriage null and void. The court, however, dismissed this application and ordered that section 29(2) was to avoid couples getting married in secret.

Please note that Ex Parte Dow was decided in the Durban and Coastal Division of the High Court. Remember that the High Court in Cape Town is not bound by the ruling of the High Court in Durban or elsewhere. 

Just to be on the safe side:

-          Unless you are getting married in Durban, please also follow up your outdoor ceremony ‘legally’ by signing the relevant documents in one of the buildings mentioned above.The parties to a wedding and two competent witnesses must sign the marriage register.

Legal Hero 

www.legalhero.co.za  

Choosing a Matrimonial Property Regime

Love is wonderful but every so often it can seduce us into acting hastily and making bad life decisions. One such a decision is choosing the wrong matrimonial property regime.

What is a matrimonial property regime?
A matrimonial property regime is a big word for the financial arrangement between you and your spouse. You could either be married:
· IN community of property
· OUT of community of property; or
· OUT of community of property WITH the accrual system.

Very important:
If you are fail to register an ante-nuptial agreement BEFORE you tie the knot, you are automatically married in community of property. This means that everything your spouse OWES and OWNS also belong to you (and vice versa).

Consequences of being married in community of property:

1. This regime means that you and your spouse share everything, including that car YOU bought before you two got married;

2. There is a common estate, therefore debt incurred by your husband or wife will also become your debt;

3. If your husband or wife is then unable to pay the debt, YOUR name will ALSO be listed on ITC (in other words, you will be blacklisted);

4. If the creditors then take judgment and ask for an attachment of property order, that car you bought before you got married can be confiscated to cover your spouse’s debt!;

5. If your spouse’s spending habits lead to sequestration or debt review, you will also form part of the sequestration or debt review.


Many couples, however, prefer South Africa’s default matrimonial property regime. It may work well for women or men who choose to stay at home and raise the kids. Your spouse’s salary is then also your salary and should you decide to go your separate ways and divorce, you will receive half of everything.

Can I claim money from my fiance if he decides to break our engagement?

“I do believe that the time has arrived to recognise that engagements are outdated and do not recognise the mores of our time” (Van Jaarsveld v Bridges (344/09) [2010] ZASCA 76 para 3).

Breach of promise (to marry) could lead to two claims, depending on the circumstances:

a)      Contractual damages (wedding preparations, costs to move to a different town, renovations to the new home, etc.);

b)      Delictual damages (sentimental damages if he broke the engagement scornfully and in an insulting manner. It is not enough to feel hurt or abandoned, the test is objective).

When calculating contractual damages, the point is to place you as the ‘innocent’ party in the position you would’ve been in had you and your fiancé not agree to get married. Remember to minus payments already contributed by him (towards the wedding preparations for example).

When calculating delictual damages, it is important to note that ‘the world has moved on and morals have changed’ (Van Jaarsveld v Bridges cited above para 6). In the Van Jaarsveld case the High Court awarded Bridges R110 000-00 as delictual damages due to the manner and circumstance in which he ended the engagement (via SMS). However, on appeal, the Supreme Court found that an SMS is a perfectly acceptable way in our modern society and that Van Jaarsveld was very apologetic and compassionate by also apologizing to her mother and saying he still views her as a ‘pragtige mens’ (lovely person). 

Wishing you a lovely day, 

Legal Hero. 

www.legalhero.co.za