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Legal Side


Guidelines to the Legal Side



Types of marriages

Because of the diversity of religions and cultures in South Africa, several different forms of marriage exist. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples. However this rule has expanded to recognised a variety of marriages including polygynous and even same-sex marriage. 


Civil Marriages

Civil marriages are governed by the Marriages Act 25 of 1961 and are about being married in the eyes of the law; the state grants you legal recognition through documentation (marriage certificate) of your partnership (marriage) to your life partner irrespective of religious or cultural affiliation.

This type of marriage can take place at court or be formalized as a wedding or marriage ceremony and may be officiated either by a religious official, government official or a state approved official.

Civil union marriage as a state institution is governed by the states laws and regulations.  In some countries any religious or customary ceremony must be held separately from, and usually before the required civil ceremony. While in many countries (including South Africa) both can be held together.


Religious Marriages

While a civil marriage is about being wed in the eyes of the law, a religious marriage is about being wed in the eyes of God (or whichever deity you believe in). It is viewed more as a spiritual bond in which a man and a woman come together to create a unified relationship according to their Gods laws and commandments - the couple will be obliged to practice the religious rites and laws of marriage as set out by their religious institution or state.

Some religious marriages like Muslim and Hindu marriages (which are not accompanied by a civil ceremony) are not recognised in South Africa and the parties are consequently considered as unmarried in the eyes of the law. This in turn means that there are certain legal rights that are not available to either party.

The reason for the non-recognition is that in general Muslim and Hindu Priests have not been designated as marriages officers and also due to their potential polygamous nature, which is seen as incompatible with the Marriage and Civil Union Acts.

In order to avoid this predicament, parties entering into Islamic and Hindu Marriages are encouraged to (after their religious ceremony) register their marriage at the Department of Home Affairs in terms of the Marriage Act or the Civil Union Act. They just need to keep in mind that should they do this the ordinary rules regarding in community of property and out of community of property will apply.


Civil Unions

Civil Unions (same-sex marriages) became legal in South Africa on 30 November 2006 when the Civil Union Bill was enacted after having been passed by the South African Parliament earlier that month - Making South Africa the 5th country to do this. This bill grants same-sex couples the same status and benefits - and the responsibilities - that marriage gives opposite-sex couples.

Marriage officers are appointed through organisations and because their governing body’s rules and regulations not all marriage officers can or have the authority to perform civil unions - only marriage officers qualified and equipped with a Civil Union Register can marry same sex couples.

Some of these rules & regulation include:

  • Organisation may see a same sex marriage in conflict with their beliefs.
  • Some churches do not allow certain marriage’s e.g. certain churches don’t marry people who have been divorced, or only marry church members (It may have nothing to do with being in a same sex union).
  • The marriage officers own person’s beliefs, ethics and standards. A marriage officer can decide if a couple understands or is mature enough, or medically fit enough to enter into a valid marriage and can also choose who he or she wishes to register.
  • Cultural or religious customs or traditions where not met or agreed upon.


Customary Marriages

A customary marriage is one where the spouses are married in terms of custom as opposed to the laws of a country. The Recognition of the Customary Marriages Act, 120 of 1998, came into operation on 15 November 2000, and gives full legal recognition to customary marriages in South Africa which are concluded in terms of the customs and traditions observed among the indigenous people of South Africa.

A customary marriage can only be concluded in accordance with customary law. Customary law is defined as  the customs and usages traditionally observed among the indigenous African peoples of South Africa and which forms part of the culture of those people

These marriages can be monogamous where the marriage stays between 1 man & 1 woman; or polygamous where the man may take on more than one wife (polygyny). The law currently does not recognise polyandry where one woman can take on more than one husband - this is because customary law is based on the different traditions practiced by different cultures and none of the cultures recognise it. Also unfortunately even tough Hindu and Muslim faiths include polygamy it is not allowed - they still need to be married according to the civil union act to have their marriages recognised as legal in South Africa.

Polygamous marriages are not allowed under the Marriage Act and the Civil Unions Act so you cannot enter into a customary marriage and civil marriage simultaneously. However, if a man and a woman between whom a customary marriage exists and neither of them is a spouse in another subsisting customary marriage with any other person they may enter in a civil union marriage.

 If the husband in an existing customary marriage wishing to marry a second wife he must apply to a competent court, the court will then considers the interests of all parties to the marriage and may add whatever conditions the court deems just for the polygamous marriage to be valid under customary law.


Common law marriage

If you are not married, but living (cohabiting) with your partner for a certain period of time - in either a same-sex or mixed-sex relationship - it is commonly seen as you being married under common law and you can then enjoy the same rights as a married couple. This is not true - there is no such thing as a Common-law Marriage in South Africa.

Therefore; no matter the amount of time that you live together as a couple, it does not translate into a “default marriage” and very few of the laws that protect married couples will protect you. So should the relationship end due to separation or death of one partner you will not be able to lay claim to an undocumented inheritance. There will also be no obligation of maintenance unless of course you can prove your partner as the biological parent.

The best way to approach a common law marriage will be to formally regulate your relationship with a cohabitation agreement, which is a legally binding document setting out how your assets are to be dealt with and any other pertinent matters should your relationship come to an end for whatever reason - this is a simple document that can easily be drawn up by any attorney. The effect of such an agreement is similar to that of a marriage in community of property, and carries many of the same benefits and disadvantages.


Legal Requirements


Your wedding day is a happy occasion and the emphasis is on celebrating your marriage, however - there are some legal aspects that you will have to take care of before the big day.


Preparing to get married

The actual act of getting married is not as complicated as you may think. Firstly you need to make sure that you are legally allowed to marry, comply with all the legal requirements and understand the legal consequences of a marriage.

Then you need to secure the following and you are set:

  • A location
    • a church or another building used for religious services
    • in a public office or private house, with open doors
    • in the case of serious illness or injuries, the marriage may take place in a hospital or any concerned facility
  • 2 witnesses
  • A marriage officer authorised in terms of Act No. 25 of 1961 to perform marriages


Naturally there are rules and regulations regarding who you may marry and according to law there are certain categories of people you may not:

  • Minors, unless the prescribed consent to the marriage has been given (see below)
  • People who are already married.
  • In the columns below, a man may not marry any person mentioned in column 1; and a woman may not marry any person mentioned in column 2:


1

2

Mother
Daughter
Father’s mother
Mother’s mother
Son’s daughter
Daughter’s daughter
Sister
Wife’s mother
Wife’s daughter
Father’s wife
Son’s wife
Father’s father’s wife
Mother’s father’s wife
Wife’s father’s mother
Wife’s mother’s mother
Wife’s son’s daughter
Wife’s daughter’s daughter
Son’s son’s wife
Daughter’s son’s wife
Father’s sister
Mother’s sister
Brother’s daughter
Brother’s daughter’s daughter
Sister’s daughter
Sister’s daughter’s daughter
Sister’s son’s daughter

Father
Son
Father’s father
Mother’s father
Son’s son
Daughter’s son
Brother
Husband’s father
Husband’s son
Mother’s husband
Daughter’s husband
Father’s mother’s husband
Mother’s mother’s husband
Husband’s father’s father
Husband’s mother’s father
Husband’s son’s son
Husband’s daughter’s son
Son’s daughter’s husband
Daughter’s daughter’s husband
Father’s brother
Mother’s brother
Brother’s son
Brother’s son’s son
Sister’s son
Sister’s son’s son
Sister’s daughter’s son


Note: It is important to check your marital status; you can do this on the Department of Home Affairs website. Even if you have never been married there are a large number of fraudulent marriages reported to every year and it is best to rather be prepared that find out on your wedding day.


Minors

As mentioned earlier minors may only be married with consent, so if you are and/or your partner is younger than 18 you need consent from either your respective parents, legal guardian or - if neither of these can be found to grant consent (or are legally incompetent to do so) - an application may be made to a Commissioner of Child Welfare for consent to the marriage. 

If your parents and/or a Commissioner of Child Welfare refuse to grant consent for your marriage, you may then apply to a judge of the High Court. The judge will not grant consent unless there is sufficient evidence that the marriage is in the interest of the minor and that prior consent has been unreasonably refused.

For boys under the age of 18 and girls under the age of 16 you may also be required to seek additional consent from the Minister of Home Affairs.

If a marriage is conducted without the legally required consent of the parents or guardian it can be declared null and void by the High Court at the request of the parents or guardian either before the minor turns 21 or within six weeks of the date on which the marriage first came to their knowledge.


Required Documents

On the day of the marriage a couple must present the following documents to the person officiating at the wedding:

  • Identity documents(for each person getting married)
  • If a foreign national is marrying a South African citizen, they should both present their valid passports as well as a letter of Non-Impediment from their home country which states they are free to get married.
  • If the wedding is for a minor (a person under 18 years), the written consent from the appropriate authority
  • If any of the persons getting married are divorced, then the final decree of divorce should be furnished
  • If any of the persons getting married are widowed, the deceased spouse’s death certificate must be submitted.
  • 3 ID photo’s each


Note: When a foreigner and South African citizen want to get married, they are required to attend an interview with an Immigration Officer at the Department of Home Affairs to obtain clearance for the marriage. This is just to prevent “marriages of convenience” to gain citizenship. The interview can only take place a few days before the wedding, but an appointment must be made.


 Marriage certificates

Both witnesses along with the marriage officer must sign the marriage register; the marriage officer will then issue the parties with a handwritten marriage certificate (BI-27) - free of charge - and then submit the marriage register to the nearest office of the Department of Home Affairs, where the marriage details will be recorded in the National Population Register (NPR). You should then receive your abridged certificate within 6 to 8 weeks.

Additional copies of the abridged (RAS purposes) or unabridged (overseas purposes) marriage certificate can be requested (either computer printed or handwritten) by completing form BI-130 in black ink and submitting it to the nearest office of the Department of Home Affairs or to the nearest South African embassy, mission or consulate abroad. You can additionally also request a vault copy of the register.


Frequently Asked Questions


Who can marry me in SA?

A marriage in South Africa can only be concluded and registered by a legally appointed marriage officer. A religious leader is not automatically a marriage officer but can write the exam and become a marriage officer.


Do we have to get married under a roof?

The law states that for a marriage to be legal it has to take place in “....a church or other building used for religious services or a public office (e.g. a Government office) or in a private dwelling house.” It makes no reference to a “roof” or “walls” and when asked at Home Affairs they will state that it must take place inside with open doors.

So basically if you want your marriage to be legal it has to take place in a location stipulated by law; however, this does not limit you to only indoor marriages. If you want the beach wedding you can just take yourself and your partner along with 2 witnesses to the courthouse a day or so before the actual wedding to get the legal aspect out of the way, you can then focus on enjoying your big day.


At what times can I get married?

You can get married on any day and at any time you want, provided you can get a marriage officer to assist you.


Where can I get married?

You can get married just about anywhere from a place of worship, public office or private dwelling. In the case of serious illness or injuries you may also get married in a hospital, provided that the medical practitioner is satisfied that the patient is in a sane frame of mind and the marriage officer feels the marriage is warranted to be solemnised in a hospital.


Do I need to be in the country for a specific amount of time before the wedding?

No, if you live or work abroad but want to get married in South Africa you don’t have to be in the country for a certain amount of time.


Can I keep my maiden name after getting married in South Africa?

Yes, you do not have to take your husband’s name. You can keep your maiden name or if you want join your surname to that of your husbands. 

Do witnesses to my marriage need to be South African?

No they don’t, proof of identification in the form of a passport is perfectly fine. However they do have to be over 16 years old.


Do I need to get a marriage license?

There is no such thing as a marriage license in South Africa; a marriage certificate is the only document you’ll need.


Contracts


There are three types of matrimonial contracts in South Africa from which you can choose:

  • Marriages in community of property
  • Marriages out of community of property, which are subject to the accrual system (ante nuptial)
  • Marriages out of community of property, which are not subject to the accrual system (ante nuptial)


This is a choice that should not be made lightly as each of these have different financial implications for a couple’s estate.

If you wish to change the type of matrimonial contracts after marriage you and your spouse may jointly apply to a court for leave to do this. However this can only be done if there are sound reasons for the proposed change, if sufficient notice has been given to all the creditors of the spouses and if no other person will be prejudiced by the proposed change.

This process can be costly and time consuming, so we advise that you carefully consider all the options before choosing the system which will best suit both of your future needs.


In Community of Property

The first important thing to keep in mind here is that in South Africa you are automatically married in community of property unless otherwise stated in an anti nuptial contract.

In terms of this marriage contract all assets and liabilities are incorporated in a single, joint estate and both parties are the owners of this joint estate. This includes all assets accumulated by one or both parties prior to the marriage as well as any accumulated after marriage. Consequently all property in the joint estate will belong to both spouses as an equal, indivisible portion – and both of them will share in the profits or losses of the joint estate.

The implications of being married in community of property should be considered carefully as it extends to the point where should a spouse wishes to exercise certain juristic acts or to commence certain legal proceedings against a third party, he or she has to obtain the written consent of the other spouse and if any legal proceedings should be taken against a spouse the creditors can seize all the assets of either spouse, as it is a joint estate.

With divorce the estate is divided equally which will be more beneficial to the ‘less-successful’ spouse - for example if the wife is a stay at home mom.

In this case, assets that can be excluded are those inherited by one of the parties on the distinct understanding that they will not form part of the joint estate.


Out of community of property

This is also known as an anti-nuptial contract (ANC) or a pre-nuptial agreement (pre-nup). It is a contract entered into by both parties that sets out the rules and conditions in respect of the division of assets should the marriage come to an end due to death or divorce.

You should see an ANC as a type of insurance for your assets, similar to taking out life or car insurance - you won’t necessarily need it but it will come in handy when you do.

What the anti-nuptial entails is that each spouse keeps his or her own estate; the powers and rights they had with regard to their estate before marriage, remains the same during and after marriage. During the marriage each spouse can build up his or her own estate and each is responsible for his or her own debts.

However, the Property Act of 1984 provides two options for your Ante Nuptial Contract:

  • With application of the accrual system
  • Without application of the accrual system


The accrual system only comes into play at the dissolution of the marriage by death or divorce and unless clearly excluded in an anti-nuptial contract the accrual system automatically applies to all marriages in South Africa.


       1. Out of community of property with the accrual system

A marriage governed by the accrual system states that when it is ended, the value of the assets obtained during the marriage will be shared equally. This is done by calculating the difference in the net starting value and the net final value of the estate of each spouse and the value of this difference, taking inflation into account, is then divided equally.

To summarise, you need to determine the value of the estate at the time of the marriage and then again at the dissolution of the marriage - this must be done for both spouses.

For example:

  • Spouse 1: Estate value at start of marriage is 1 mil and at dissolution 1.5 mil which is a growth (accrual) of R 500 000
  • Spouse 2: Estate value at start of marriage is 1 mil and at dissolution 1.3 mil which is a growth (accrual) of R 300 000


The difference in accrual between the estates of the two parties is therefore R200 000 (R500 000 less R300 000).


This difference will then be divided equally where the spouse whose estate accrued by the smaller amount will have a claim against the other spouse’s estate for half of the difference of R 100 000.

So the division will fork as follow:

  • Spouse 1 will get R 500 000 less R100 000 = R400 000
  • Spouse 2 will get R 300.000 plus R100 000 = R400 000


This type of agreement is ideal for spouses whose estates are more or less the same size before marriage and it is estimated that one of the spouse’s estates will grow and the other spouse’s estate will remain roughly the same during the marriage.

Advantages:

  • You both share in the wealth accumulated during marriage
  • If each of you owned property before the marriage, it remains in your respective names
  • You each conduct your own independent financial affairs.
  • If one of you goes into debt, it cannot be claimed from the estate of the other
  • The anti-nuptial contract can be tailored to suit your needs
  • It protects the partner who remains at home to care for the family


The disadvantage, however, in the case of one spouse being a stay-at-home care giver is that the spouses do not share in each other’s credit worthiness; this can have the result that the spouse can end up having a bad credit record. Yes this spouse will benefit from his/her share of the wealth accumulated during marriage but it is not ideal should he/she need to apply for credit to try and get on his/her feet after the fact.

You can also exclude certain assets like inheritances, legacies or donations - as well as any assets explicitly excluded in terms of the conditions of the contract - from the accrual in terms of the Matrimonial Property Act. These assets will not be taken into account when the growth of the estates is determined.


       2. Out of community of property without the accrual system

As mentioned earlier if you want to exclude the accrual system you have to specify it in the Anti-nuptial Contract.

In laymen terms excluding the accrual system means what is yours, stays yours - before, during and after marriage. The property owned by a person prior to the marriage, as well as all property accumulated during the marriage, belongs only to that person. This also applies to their liabilities which remain their own respective responsibility - thus the debts of each party remains their own and their responsibility to pay.

Should one of the parties wish to get a divorce, then neither spouse would be entitled to make a claim on any of the assets belonging to the other and no profits or losses will be shared from either party. Furthermore, the court is not entitled to make adjustments to this to create equality and fairness. In the case of either spouse dying, the estates of each respective spouse are then normally dealt with through a will.

This is a good option for spouses with large estates and /or where it is estimated that both of the spouses’ estates will experience growth during the marriage or stay more or less the same.

Advantages:

  • If one of the parties becomes insolvent, creditors may not attach the assets of the other
  • Both parties are still legally obliged to offer financial support to one another, should one of them be unable to support himself/herself.
  • Full contractual freedom.


The disadvantage is that in the case of death or divorce, each spouse is only entitled to those assets accrued in their own name. So should one spouse choose to stay at home to raise the children, that spouse would not be entitled to the assets accumulated by the other spouse - along with this he/she will most likely not have a very good credit record which can leave him/her in serious financial difficulty.