Please take note that on the day of the hearing of the matter in court you will have to bring your original marriage certificate to court. You can attach the original marriage certificate to the summons but you will then always have risk of this certificate getting lost during the proceedings before you go to court.
The ante nuptial agreement will still be valid between you and your spouse if the agreement is duly signed by you and your spouse but not registered at the deeds offices. This will however have the effect that the agreement will then only be enforceable between you and your spouse but not against other third parties such as creditors. If the ante nuptial agreement is successfully registered then it will be enforceable against other parties apart from you and your spouse.

Marital Regime

After your clause about the jurisdiction you will have the fourth clause, which will refer to the marriage, where and when it was concluded and under which matrimonial property system.

If you got married outside of the Republic of South Africa, different considerations might apply to your case and you need to seek legal guidance from an attorney.

The different matrimonial property systems are described hereunder, but which one is applicable in your case would have already been determined at the time that you got married. Specifically, your ante nuptial agreement, if any, would determine which marital property system is applicable. If you did not enter into an ante nuptial agreement, you are considered to be married in community of property – but read the descriptions below regardless, as there may be special provisions applicable to you due to, for example, the date that you got married.

The first distinction is between a marriage “in community of property” and a marriage “out of community of property”.

With a marriage “in community of property”, you and your spouses assets are basically lumped together into one big pile (the “joint estate”) – which is owned by both of you. This is the ‘default’ marital regime, and the result is that the assets in the joint estate will be divided equally between the two of you when you divorce. There are some assets that might fall outside of the joint estate and belong solely to you or your spouse (for example certain assets that you inherited, gifts or money that a court awarded to you). If you think you might have assets that fall outside of the joint estate, you should see an attorney.

With a marriage “out of community of property” (and excluding the accrual system), your and your spouses assets are seperate and each one owns his or her own estate. You may, however, have opted to get married “out of community of property with accrual”. This is a bit of a hybrid system, where in principle each spouse owns his / her own assets, but any growth in their estates during the marriage is divided equally between the spouses when they get divorced. This means the spouse whose estate grew the most will have to transfer some assets or value to the spouse whose estate grew less. The ante nuptial contract that the spouses would have signed will determine exactly how the assets are dealt with.

If you got married out of community of property and without the accrual system, but you got married before 1 November 1984, you may be able to ask for ‘redistribution of assets’. If you fall within this category, it would be advisable to seek assistance from an attorney.

When completing the form at Court with the assitance of the Registrar, the relevant clause in the summons will look similar to this:

“The parties married {description of marital regime applicable, for example “in community of property”} on {date – including year – on which you got married} at {city where you got married}, and the marriage still subsists.”

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