in community of property

in community of property


“My husband and I were married in community of property many years ago. We now however feel that it would be better for the management of our family and separate business interests if we were rather married out of community of property. Can we change our marriage system to out of community of property?”

Things change. What once seemed appropriate, a few years later may not. Fortunately, our law understands this and allows married couples to change their matrimonial property system at a later stage. But to dissuade flippant changes and to protect creditors, our law demands that a court approve such a change.

The following provides a brief overview of the process to change your matrimonial property system. It should be noted that this process may vary slightly for the different provincial High Courts.

• A notary must draft what is now termed a notarial post-nuptial contract for you containing the change in matrimonial property system you wish to apply to your marriage. This contract will for all intents and purposes have to meet similar requirements as would be necessary for a notarial ante-nuptial contract
• Your attorney will also have to assist you in giving notice to the Registrar of Deeds and your creditors of your proposed change of matrimonial property system. The notice of the proposed change to the Registrar of Deeds must be advertised in the Government Gazette and in two local newspapers in the area where the parties reside at least two weeks prior to the date of the application’s hearing. The notice to the creditors must be given by certified post at least two weeks before the date of the application.
• Your attorney will then have to assist you in lodging an application with the High Court to change your matrimonial property system. In the application the parties must make full disclosure of their financial position and it will have to be shown that –
o There are sound reasons for the change;
o That sufficient notice was given to your creditors.
o That no other person would be prejudiced by the proposed change.
• Should the court approve the change of property system, the court will authorise a notary to sign and execute the notarial post-nuptial contract and register such with the relevant Deeds Office. The result of such registration will be that the matrimonial property system has been changed to that approved by the court and provided for in the notarial post-nuptial contract.

The process to amend your matrimonial property system can take a few months to be completed and can also be costly as it involves an application to court. But it can be done. If you wish to proceed with the change of your matrimonial property system I would advise that you consult an attorney as soon as possible to get the process started.

Muslim marriages

Muslim marriages officiated in terms of South African law
Posted on 02 June 2014


For over 300 years Muslim spouses and children suffered discrimination due to their traditional religious marriages not being recognised in terms of South African law. Accordingly, Muslim women were denied spousal benefits such as the right to inherit intestate and to claim maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990. Children from such marriages were labelled illegitimate, with attendant adverse consequences arising from this status. Previously, Muslim couples had to have their traditional marriages converted to civil marriages by way of a separate civil ceremony in order for it to be officially recognised and protected as valid marriages.

On Wednesday, 30 April 2014, over one hundred Imams (Muslim clerics) were officially appointed as marriage officers in terms of the Marriage Act 25 of 1961 (“the Marriage Act”) after a three-day course covering the principles of the Marriage Act and after passing an examination on the Marriage Act. These marriage officers are now able to officiate Muslim marriages in terms of the Marriage Act and register all marriages they officiate. Muslim marriages officiated in terms of the Marriage Act will be in line with the requirements of Sharia (Muslim law) and also be recorded as such on the National Population Register thereby receiving legal status and recognition.

This will come as excellent news to many Muslim women and children who have in the past found themselves in a similar position as the now late Suleiga Daniels, in the case of Daniels v Campbell N.O and Others and Fatima Gabie Hassam in the case of Hassam v Jacobs NO and Others.

Suleiga Daniels was initially not recognised as the surviving spouse of her husband, Moegamat Daniels, when he passed away without leaving a will and she consequently lost her house in 1994. The couple lived in the house for seventeen years as husband and wife after having married according to Muslim law in 1977. Daniels was informed by the Master of the High Court that because they were married in terms of Muslim law, she had no legal right to benefit from his estate. Daniels took to the courts and in 2003 she was successful. The court ordered that both the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 should be amended to make provision for the term ‘spouse’ also to include “a husband or wife married in accordance with Muslim rites in a de facto monogamous union”.

In the landmark case of Hassam v Jacobs NO and Others, Fatima Gabie Hassam could not inherit from her husband’s deceased estate when he passed away without leaving a will. The reason for this was that her marriage to him was not legally recognised as she was a party to a polygamous Muslim marriage. Fatima also approached the courts for relief and the Western Cape High Court ruled in her favour. The ruling was then referred to the Constitutional Court for confirmation. The Constitutional Court further ruled that Fatima had been discriminated against on the grounds of religion, marital status and gender and that her right to equality had been violated. The Constitutional Court confirmed that women who are party to a polygamous marriage concluded in terms of the Muslim law are deemed to be spouses for purposes of inheriting or claiming from the deceased estate where their deceased husband died without leaving a will.

This initiative to increase the number of Imams who are legally competent to solemnise civil marriages will undoubtedly allow for increased legal protection for Islamic spouses and their children.

During his congratulatory speech, delivered to the newly-graduated Imams, Deputy President Kgalema Motlanthe said: “… the registration of Muslim unions will accord Muslim marriages legal status and with that, the protective instruments of the secular state may be accessed to ensure that these Qur’anic values are realised and complied with within the Constitutional state. Out of this initial step we will be able to push back the frontiers of exclusion that have so long been visited on the Muslim community.”