New Marriage Laws in South Africa

Keep in mind that not registering a customary marriage does not invalidate the marriage, but it is strongly advised to obtain one in case disputes end up in court. 1.1 The Marriage Act No. 25 of 1961 regulates monogamous marriages for opposite-sex spouses. However, other monogamous and heterosexual religious marriages are excluded for religious reasons. These include Hindu and Muslim marriages, which are contracted in accordance with their religious rites. In 2006, South Africa became the first African country (and the fifth in the world) to grant equal marriage rights to same-sex couples. The country has been an important stimulus on the path to marriage equality, which still seems to be an unattainable goal in Italy. South Africa truly deserves the definition of “rainbow nation” coined by Anglican Archbishop Desmond Tutu to outline a project for appropriate coexistence after the terrible times of apartheid. The country wants to celebrate all its diversity: ethnic, religious, linguistic and sexual.

A person can only be married under one of these laws at a time, except that a couple in a habitual monogamous marriage can marry under the Marriage Act. The solemnization and registration of such marriages is administered by the Ministry of the Interior. By definition, a customary marriage is a union that is negotiated, celebrated and concluded within the meaning of indigenous African customary law. While many African cultures in South Africa require the exchange of lobola or magadi, wedding celebrations vary from community to community and can include singing and dancing, slaughtering livestock, exchanging gifts, and accepting the bride into her new family. If you enter into a civil marriage or registered partnership, the marriage officer will issue a handwritten marriage certificate free of charge at the ceremony. You can request a copy of the marriage certificate from the Department of Home Affairs if you got married in South Africa and your marriage is registered. The first issuance of an abbreviated marriage certificate is free, but you will have to pay for a second issue or a full marriage certificate. If one of the partners has died and you need to prove that you were married, you will be issued a full marriage certificate.

To register a customary marriage, the couple must apply to the Ministry of Home Affairs for the following: The definition of a customary marriage is that which is “negotiated, solemnized or concluded in accordance with one of the indigenous African customary law systems existing in South Africa”. You must register your usual marriage within three months of the date of the marriage or marriage to make it legal. This can be done in any office of the Ministry of the Interior or by a designated traditional leader in areas where there is no Ministry of the Interior. Find out about the conditions of marriage, prohibited marriages and the marriage of a minor or contact the Ministry of the Interior. However, the controversy focused on one topic: polyandry, that is, marriage between a woman and two or more men. To fully understand the issue, we need to look at matrimonial customs in the country. South Africa has different regimes: civil marriages and ordinary marriages, which are different for each ethnic group and account for 2-3% of all marriages in the country. Civil marriage is always and exclusively between people, common marriages of some communities allow polygamy, where a man marries two or more wives. A customary marriage is automatically considered to have been contracted in community of property. This means that all property and debts from the period before the marriage are divided between the spouses in a joint estate.

When couples are married in community of property, their separate property is pooled and each spouse loses the right to dispose of property at will or to acquire debts without the knowledge and consent of the others. In addition, a customary marriage must be registered with the Ministry of Interior within three (3) months of the entire procedure. A marriage certificate serves as written proof of the couple`s marital status. In 2011, the Ministry of the Interior registered 167,264 marriages under the Marriage Act, 5,084 ordinary marriages under the Recognition of Habitual Marriages Act and 867 marriages or civil partnerships under the Registered Partnerships Act. In the same year, 20,980 divorces were declared. [11] Getting married has different meanings for different people in South Africa. For some, a traditional wedding may mean a chic white dress and a long walk down the aisle, while for others, it`s more of a colorful celebration of African heritage and ancient customs. But no matter how we celebrate love and commitment in all its diversity, getting married is always a legal matter.

South African laws recognize and protect not only civil marriages, but also ordinary marriages, provided certain conditions are met, in accordance with the Customary Marriages Act 120 of 1998. Refers to a marriage in which a man has one wife at a time. In addition to the above-mentioned provisions that marriage must be negotiated, solemnized and concluded under customary law, there are other laws. The couple must be of legal age (over 18 years of age) by mutual consent and not already living in civil life. Customary law allows polygamy, but the groom can only legally marry another wife if the Supreme Court has issued an order regulating the matrimonial regime of marriages. The divorce of same-sex couples is subject to the same law as the divorce of opposite-sex couples. Divorce for customary marriages is also governed by civil law, with some modifications to take into account that ordinary marriages may be polygamous. Contract concluded to regulate whether a marriage is contracted outside the community of property with or without the imputation system. The marriage contract must be signed by the spouses, two witnesses and a notary and registered at the deed office within the prescribed period.

Three types of marriages are recognized under South African law: civil marriages, ordinary marriages and registered partnerships. This is identical to a “marriage resulting from community of property”, but the delimitation system will apply. The savings system is a formula used to calculate how much the larger estate must pay to the smaller estate if the marriage ends in death or divorce. Only property acquired during the marriage can be taken into account in the calculation of the provision. The deferral system does not apply automatically and must be included in a marriage contract. The financial consequences of African customary marriages contracted before the year 2000 are governed by applicable customary law. In marriages contracted after the year 2000, the same rules apply to monogamous marriages as to civil marriages. If the marriage involves a second or subsequent wife, the law requires the husband to approve in court a written contract governing the future matrimonial regime of his marriages. There are three different laws under which a marriage can be contracted in South Africa: The spouses have their own land which contains property and debts acquired before and during the marriage (“what is mine is mine and what is yours is yours”).

Each spouse is liable separately to his or her creditors. Before the marriage is contracted, a marriage contract must be concluded stipulating that the marriage is contracted outside the community of property. 1.2 Monogamous marriages of heterosexual blacks were governed by the Black Administration Act 38 of 1927, which was partially repealed. The spouses may marry under a different matrimonial property regime by concluding a contract before a notary; To be enforceable against third parties, the contract must also be entered in the register of documents within three months of the date of performance. An antenuptial contract excludes community of property and community of profit or loss, so each spouse maintains a separate estate with separate assets and liabilities. The contract may also contain specific provisions on the management of property and its distribution after death or divorce. In the case of marriages concluded under a marriage contract since 1984, the recovery system applies to the marriage, unless expressly excluded in the contract. In the delimitation system, the spouses` property remains separate for the duration of the marriage, but at the time of death or divorce, their property is adjusted so that the difference in “provision” between the two estates is divided equally.