South Africa, with its diverse cultures and religions, is home to a variety of marriage types, and over time several laws have been passed to cater for and protect those unique marital relationships.
Each of these Acts contain several requirements which must be met for a marriage to be validly solemnised in accordance with such Act.
For example: –
- Marriages under the Marriages Act (also called “civil marriages”) must be solemnised by a marriage officer in a building used for religious purposes or in a private or public building with open doors and in the presence of two witnesses.
- Marriages under the Recognition of Customary Marriages Act (also called “customary marriages”) must be negotiated and entered into or celebrated in accordance with customary law. It must also be registered within three months after conclusion of the marriage.
- Marriages under the Civil Union Act (also called “civil unions”) can be registered as marriages or civil partnerships and the parties must declare in writing in an affidavit, their willingness to enter into such marriage or civil partnership. This is the Act under which same-sex couples get married or enter into a civil union. Opposite sex couples can also get married in terms of this Act and it is often used by atheists, pagans, etc who reject the “religious” undertones of marriage but wish to formalise their relationship by entering into a civil union.
For all marriages, irrespective of the legislation in terms of which it is solemnised, the parties must consent thereto and be older than 18 years of age. However, if the marriage is solemnised under the Marriages Act or the Recognition of Customary Marriages Act, a minor can get married with the consent of a parent, legal guardian, the Commissioner of Child Welfare, or the High Court is required for such marriage. If the marriage or civil union is to be solemnised in terms of the Civil Unions Act both parties must be older than 18 years of age.
A person may also only be a spouse to a marriage governed by one Act, in order words, one cannot be a spouse in a customary marriage and at the same time, be a spouse in a civil union. The one marriage must have been dissolved first, either by death or divorce before another marriage may be solemnised under another Act.
Civil marriages and civil unions may be solemnised by two persons only, whereas with customary marriages, a person may be a party to more than one customary marriage.
The matrimonial system and proprietary consequences of all validly registered marriages and civil unions in South Africa, concluded in terms of the Marriages and Civil Unions Acts, are governed by the Matrimonial Property Act, 1988. This means that parties are married, or civilly united either in community of property, or out of community of property. For parties to be married out of community of property, an antenuptial contract must have been concluded between the parties before their union and the contract must have been registered in one of the Deeds Registries within 3 months of the marriage. It is also possible in certain circumstances, and after application to the High Court, to register a post nuptial contract.
Customary marriages concluded before the commencement of the Recognition of Customary Marriages Act (15th November 2000) continue to be governed by customary law unless the parties apply to court for leave to change the matrimonial property system which applies to their marriage. A customary marriage entered into after the commencement of the Act, in which a spouse is not a partner in any other existing customary marriage, is one in community of property unless the parties enter into an antenuptial contract.
If a husband, who is already a party to a customary marriage, wishes to enter into a further customary marriage, he must apply to court for the approval of a written contract which will regulate the matrimonial property system of his future marriages.
This article is intended as a basic guideline of, or introduction to, the relevant laws applicable to the various marriages, matrimonial systems and proprietary consequences of South African marriages and is by no means intended to be a detailed or academic work of all the legalities surrounding marriages and the proprietary consequences thereof.
Article by Karen Britz