Marriages, Unions & Partnerships in Property Law

South African law formally recognised customary marriages through legislation that came into force in November 2000. The purpose was to give legal standing to marriages concluded under traditional African customary law — a significant step toward equality within the legal system.

When it comes to property, the default position for a monogamous customary marriage (where neither spouse is also a partner in any other customary marriage) is treated in essentially the same way as an ordinary marriage in community of property. Both spouses jointly own and share in all assets and liabilities accumulated during the marriage. This means that if one spouse wants to sell or bond a property that forms part of the joint estate, the other spouse's consent is required.

A customary marriage can also be structured as out-of-community-of-property if the parties concluded an antenuptial contract beforehand. In that case, each spouse owns their own property independently, and no spousal consent is required for property transactions.

South African law acknowledges that customary law traditionally permits a man to have more than one wife. This creates a genuinely complex situation for property law, because the rules around joint ownership and spousal consent do not map neatly onto a household with multiple spouses.

For polygamous customary marriages entered into before the Recognition of Customary Marriages Act came into force, the law recognised that spouses hold joint and equal rights of ownership, management, and control over marital property. No single spouse — including the husband — has an overriding claim.

The requirement to obtain a court order before entering a second or subsequent customary marriage is intended to protect the existing wife and to create certainty about how property will be divided and managed. Without a court order setting out a property-sharing arrangement, the consequences for property registration become unclear.

Courts have confirmed that even where a husband entered a further customary marriage without the required court order, the marriage is not automatically invalid. However, it is generally treated as a marriage out-of-community-of-property by default in such cases.

The 2021 amendments to the Recognition of Customary Marriages Act brought some of the most significant changes to customary marriage property law in decades. If you were married under customary law — especially before the original Act was passed in 1998 — these changes may directly affect you.

The Civil Union Act 17 of 2006 opened marriage or formal partnership registration to all couples in South Africa — regardless of gender. This was a landmark development in South African family law, extending the same legal protections and obligations to same-sex couples as to opposite-sex couples.

Under the Civil Union Act, a couple can formalise their relationship in one of two ways:

In property transactions, this distinction matters because the formal description used in a deed of transfer or bond document must accurately reflect the nature of the union. The same-sex or opposite-sex nature of the relationship makes no difference to the legal treatment — what matters is whether it was registered as a marriage or as a civil partnership.

It is also worth noting that where same-sex partners are married under the laws of a foreign country (rather than under South African law), the description in property documents follows the rules applicable to foreign marriages — which is discussed further below.

One of the most practically important features of the Civil Union Act is that it applies the Matrimonial Property Act 88 of 1984 fully and equally to civil union spouses and civil partners. This means the same rules that govern the property rights of traditionally married couples apply in exactly the same manner to civil unions.

In South African law, a business partnership does not have its own separate legal personality — it is not a company or a close corporation. It exists as the combined legal presence of its individual partners. This has direct consequences when a partnership wants to buy or sell property.

When property is purchased in the name of a partnership, the deed of transfer must include the full personal details of every individual partner: full names, identity numbers, and marital status. It is not enough simply to describe the partnership by its trading name. The document must then record that those individuals are "together carrying on business in partnership as [name of the partnership]."

Where one of the partners is married in community of property, a specific rule applies: the property is registered in the name of that partner as partner — not in the name of their joint marital estate. This prevents the property effectively flowing into the couple's community estate and then becoming subject to both spouses' rights and obligations.

One of the more unusual — but not uncommon — situations that arises in conveyancing is where two people who are married to each other also run a business together as a partnership. South African law explicitly permits this arrangement, but it comes with particular rules worth understanding.

Provided both spouses have together entered into the partnership, there is no prohibition on immovable property being registered in the name of that partnership. The law permits spouses who are married in community of property to enter into a partnership agreement together — even with each other.

In practice, where a couple married in community of property both participate in the same partnership, property belonging to the partnership must be vested in both their names — but described as being held in their capacity as partners in the partnership, not as joint owners of the marital estate.

An increasing number of property transactions in South Africa involve parties who were married abroad — whether they are South Africans who married overseas or foreign nationals purchasing property here. The rules for these situations are distinct and require careful handling in the transfer process.

The starting point is a well-established principle: the legal consequences of a marriage are governed by the law of the country in which the husband was domiciled on the date of the marriage — not the country in which the wedding ceremony took place. This may come as a surprise to those who assume the law of the country where they got married automatically applies.

In practical terms, where a marriage is governed by the law of another country, a specific legal requirement applies: the spouse of the person transacting must assist by co-signing the relevant deed or document. The transfer documents must state that the marriage is governed by the law of that foreign country.

Same-sex couples whose union is governed by the laws of a foreign country are treated in exactly the same way for these purposes — the same description requirements apply regardless of the gender of the parties.