# Marriage and Matrimonial Property Law Amendment Act, 1988

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Act No. 3 of 1988.
Act
To amend the marriage and matrimonial property law with regard to certain marriages; and to provide for matters connected therewith.
Be it enacted by the State President and the Parliament of the Republic of South Africa, as follows:―
1. Section 22 of the Black Administration Act, 1927, is hereby amended—
(a)
“(1) A man and a woman between whom a customary union subsists are competent to contract a marriage with each other if the man is not also a partner in a subsisting customary union with another woman.”;
(b)
“(2) Subject to subsection (1), no person who is a partner in a customary union shall be competent to contract a marriage during the subsistence of that union.”;
(c)
“(3) No marriage ofﬁcer shall solemnize the marriage of a Black man unless he has first taken from him a declaration to the effect that he is not a partner in a customary union with any woman other than the one he intends marrying.”;
(d)
“(5) A Black man who wilfully makes a false declaration to a marriage officer with regard to the existence or not of a customary union between him and any woman, shall be guilty of an offence and liable on conviction to the penalties which may by law be imposed for perjury.”;
(e)
(f)
“(7) No marriage contracted after the commencement of this Act but before the commencement of the Marriage and Matrimonial Property Law Amendment ​Act, 1988, during the subsistence of any customary union between the husband and any woman other than the wife shall in any way affect the material rights of any partner of such union or any issue thereof, and the widow of any such marriage and [any] the issue thereof shall have no greater rights in respect of the estate of the deceased spouse than she or they would have had if the said marriage had been a customary union.”.
2. Section 7 of the Divorce Act, 1979, is hereby amended—
(a)
“(3) A court granting a decree of divorce in respect of a marriage out of community of property—
(a)
in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; or
(b)
may, subject to the provisions of subsection (4), (5), and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just be transferred to the first-mentioned party.”; and
(b)
“(5) In the determination of the assets or part of the assets to be transferred as contemplated in subsection (3) the court shall, apart from any direct or indirect contribution made by the party concerned to the maintenance or increase of the estate of the other party, as contemplated in subsection (4), also take into account—
(a)
(b)
(c)
(d)
3. Section 21 of the Matrimonial Property Act, 1984, is hereby amended by the substitution for paragraph (a) of subsection (2) of the following paragraph:
“(a)
(i)
(ii)
may cause the provisions of Chapter I of this Act to apply in respect of their marriage by the execution and registration in a registry within two years after [that] the commencement of this Act or, in the case of a marriage contemplated in subparagraph (ii) of this paragraph, within two years after the commencement of the said Marriage and Matrimonial Property Law Amendment Act, 1988, as the case may be, or such longer period, but not less than six months, determined by the Minister by notice in the Gazette, of a notarial contract to that effect.”.
4. Section 25 of the Matrimonial Property Act, 1984, is hereby amended by—
(a)
(b)
“(2) Notwithstanding anything to the contrary in any law or the common law contained, the spouses to a marriage [other than a marriage contemplated in subsection (1)] entered into before the commencement of this Act and in respect of which the matrimonial property system was not governed by section 22 of the Black Administration Act, 1927 (Act No. 38 of 1927), may—
(a)
(b)
by the execution and the registration in a registry within two years after the said commencement or such longer period, but not less than six months, determined by the Minister by notice in the Gazette, of a notarial contract to that effect, and in such a case those provisions apply from the date on which the contract concerned was so registered.”; and
(c)
“(3) Notwithstanding anything to the contrary in any law or the common law contained, the spouses to a marriage entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, and in respect of which the matrimonial property system was governed by section 22 of the Black Administration Act, 1927 (Act No. 38 of 1927), may—
(a)
(b)
by the execution and registration in a registry within two years after the said commencement or such longer period, but not less than six months, determined by the Minister by notice in the Gazette, of a notarial contract to that effect, and in such a case those provisions apply from the date on which the contract was so registered.”.
5. The following section is hereby substituted for section 26 of the Matrimonial Property Act, 1984:
26. Sections 1 and 2 of the Matrimonial Affairs Act, 1953 (Act No. 37 of 1953), do not apply to marriages in respect of which the provisions of section 25 (2) or (3) of this Act have been applied or to marriages concluded after the commencement of this Act, other than marriages in respect of which the matrimonial property system [is] was governed by section 22 (6) of the Black Administration Act, 1927 (Act No. 38 of 1927), before the deletion thereof by the Marriage and Matrimonial Property Law Amendment Act, 1988.”.
5. The following section is hereby substituted for section 89 of the Deeds Registries Act, 1937:
89. (1) The provisions of sections 86 and 87 shall mutatis mutandis apply in respect of—
(a)
(b)
(2) Where a contract in terms of section 21 or 25 (2) (b) or (3) (b) of the Matrimonial Property Act, 1984, replaces or amends an existing antenuptial contract, the contract to be registered shall be accompanied by the existing contract or a certiﬁed copy thereof.
(3) Upon the registration of a contract contemplated in section 21 or 25 (2) (b) or (3) (b) of the Matrimonial Property Act, 1984, the existing antenuptial contract, if any, shall be cancelled or endorsed appropriately, as the case may be, and for that purpose the registrar shall notify the registrar of the registry where the existing contract is registered and every registrar in whose registry a copy thereof is filed in terms of section 87 (3).”.
7. Section 102 of the Deeds Registries Act, 1937, is hereby amended by the substitution in subsection (1) for paragraphs (b) and (c) of the deﬁnition of “owner” of the following paragraphs:
“(b)
(i)
(ii)
(c)
(i)
of property [entered into before 1 November 1984 and] to which the provisions of Chapter III of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), are not applicable, the husband;
(ii)
(iii)
8. This Act shall be called the Marriage and Matrimonial Property Law Amendment Act, 1988, and shall come into operation on a date ﬁxed by the State President by proclamation in the Gazette.
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