Understanding Some Key Concepts In South African Marriage Laws
People get married for various reasons; mainly for companionship, procreation, and redemption. Marriage, also referred to as matrimony or wedlock, is defined as a legally recognised, life-long, voluntary union between a man and a woman, or two people of the same sex. The definition of marriage differs according to culture, but is commonly an institution in which an interpersonal relationship, usually intimate and sexual, is acknowledged through the exclusion of all other persons. Marriage is an acceptance, a total acceptance of another’s life. In a diverse society like South Africa, relationships between people can take numerous forms. People can enter into civil marriages, same-sex marriages, customary marriages, religious marriages or domestic partnerships (cohabitation); these are categorised and recognised under South African law into three types of marriages: civil marriages, customary marriages and civil unions.
The solemnisation and registration of these marriages are managed by the Department of Home Affairs.
When you enter into a civil marriage or civil union, the marriage officer will issue a handwritten marriage certificate free of charge at the ceremony. You can apply for a copy of the marriage certificate from the Department of Home Affairs if you have been married in South Africa and your marriage is registered. The first issue of an abridged marriage certificate is free, but you will have to pay for a second issue or an unabridged certificate. Where one partner has passed away and you need to prove that you had been married, an unabridged marriage certificate will be issued.
The definition of a customary marriage is one that is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”. You must register your customary marriage within three months of the date of celebration or entering into the marriage to make it legal. This can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.
The statutes that currently regulate the formalities of marriages and civil unions in South Africa are: The Marriage Act 25 of 1961, The Recognition of Customary Marriages Act 120 of 1998, The Civil Union Act 17 of 2006
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“Marriage is an acceptance, a total acceptance of another’s life.”
For nearly five decades, civil marriage in South Africa has been governed and regulated by the Marriage Act 25 of 1961. Customary marriages are recognised through the Recognition of Customary Marriages Act 120 of 1998, which came into effect in November 2000. Following the acceptance of the Civil Union Act 17 of 2006, South Africa became one of very few countries to give legal protection and marriage benefits to partners in same-sex relationships. The legislation was adopted as a direct response to a landmark decision made by the Constitutional Court. The Draft Marriage Bill of 2022 shows the intention of the South African Legislature to change its marriage law to recognize all forms of intimate partnerships, irrespective of gender, sexual orientation, or religious, cultural, and other beliefs. This is in line with the broader goal of our country to reach substantive equality on all fronts and bring legislation regarding marriages in line with the Constitution
If you are planning on getting married, you must:
- ensure that you are legally allowed to marry
- understand the legal consequences of a marriage, particularly that marriages in South Africa are automatically in community of property, unless a valid ante-nuptial contract has been entered into before the marriage, and
- make sure that your marriage will comply with all the legal requirements for a valid marriage
Should you be unsure of any of these, legal counsel should be sought before the marriage is entered into.
Below are some legal-related questions and answers for an easy read.
1. How can a person get married in South Africa?
- A person can get married in terms of a civil marriage, customary marriage, civil union or religious marriage.
- A religious marriage is not recognised as a legal marriage under South African law, but the spouses in a religious marriage are protected by law in certain instances.
2. What are the general requirements for a valid marriage?
- Both persons to the marriage must give consent to get married and must be older than 18 years of age.
- A person younger than 18 years of age, needs the permission of his/her parent/s or guardian/s to get married. No person younger than 18 years of age can enter into a civil union.
- The marriage must be lawful, for example:
- persons who are closely related (such as brother and sister, or parent and child) may not get married; or
- a person may not have more than one marriage at a time, except for certain instances under customary marriages.
- Certain formalities must be adhered to, such as that the marriage must be concluded by a marriage officer and in the presence of two witnesses.
- A marriage must be registered at the Department of Home Affairs.
3. What is a civil marriage?
- It is a marriage that can only be entered into between a man and a woman.
- A civil marriage will automatically be in community of property, unless an ante nuptial contract is entered into indicating that the marriage will be out of community of property, with or without the accrual system.
4. What is a customary marriage?
- It is a marriage entered into between a man and a woman, negotiated and celebrated according to the prevailing customary law in their community.
- A customary marriage is recognised as a valid marriage and will receive full legal protection irrespective of whether it is monogamous or polygamous.
- A monogamous customary marriage will automatically be in community of property, unless it is stipulated otherwise in an ante nuptial contract.
- In a polygamous marriage, the husband must apply to the High Court for permission to enter into such a marriage and provide the court with a written contract stating how the property in the marriages will be regulated (to protect the property interests of both the existing and prospective spouses).
5. What is a civil union?
- It is a marriage entered into between two persons and include persons of the same sex.
- A civil union will automatically be in community of property, unless it is stipulated otherwise in an ante nuptial contract.
6. Is a foreign marriage recognised in South Africa?
- A marriage concluded outside the borders of South Africa will only be valid if it was concluded in terms of the formalities of the jurisdiction where the marriage was concluded.
7. What is a religious marriage?
- It is a marriage entered into in terms of a religion such as the Islamic and Hindu faith.
- Even though it is not recognised in South African law, limited protection is granted to a religious marriage in the following instances:
- a spouse may, upon the death of the other spouse, approach a Magistrate’s Court for a maintenance order against the deceased spouse’s estate;
- a spouse may inherit in terms of the law of intestate succession (when a person dies with no Will); and
- spouses are protected against domestic violence.
- A religious marriage must be treated as a marriage out of community of property without the accrual system.
8. How to register a marriage?
- The couple, the two witnesses and the marriage officer must sign the marriage register immediately after the solemnisation of the marriage. Then the marriage officer must issue the parties with a handwritten marriage certificate free of charge. The marriage officer must 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. Non-fulfilment of these requirements does not affect the validity of the marriage and registration of the marriage can be affected post-nuptially. A duly signed marriage certificate serves as prima facie proof of the existence of the marriage. In the absence of a marriage certificate, the existence of the marriage may still be proved by other evidence.
9. Who can officiate a marriage?
- Every magistrate, special justice of the peace and commissioner, in the territory or other area in respect of which, and for as long as he or she holds office.
- Any other officers or employees in the public service or the diplomatic or consular service of South Africa, whom the Minister of Home Affairs, or any officer in the public service authorised to do so, has designated as marriage officers by virtue of their office. A marriage officer of this class may have a general authority to perform marriages, or an authority limited to a particular group or class of persons or country or region.
- Any minister of religion or any person holding a responsible position in any religious denomination or organisation, who has been designated to perform marriages by the Minister of Home Affairs or an officer in the public service authorised by him/her according to Christian, Jewish or Muslim rites, or the rites of any Indian religion. A pastor’s authority may be limited to the solemnisation of marriages within a specified area or for a specific period.
- In addition to a marriage officer, the marriage must be conducted in the presence of at least two witnesses:
9. Where can a marriage ceremony be conducted for it to be considered legal?
- in a church or another building used for religious services;
- in a public office or private house, with open doors; or
- in the case of serious illness or injuries, in a hospital or any concerned facility.
9. What documents are required for marriage?
- identity documents (for each person getting married);
- if a foreign national is marrying a South African citizen, they must both present their valid passports, as well as a completed Declaration for the Purpose of Marriage, Letter of No Impediment;
- if the wedding is for a minor (a person under the age of 18 years), written consent of either both the parents/legal guardian or a Commissioner of Child Welfare OR the Minister of Home Affairs or a judge must be submitted. If the minors getting married are under the ages of 18 years for boys or 15 years for girls, written consent from the Minister of Home Affairs is also required;
- if any of the persons getting married are divorced, then the final decree of divorce must be furnished; and
- if any of the persons getting married are widowed, the deceased spouse’s death certificate must be submitted.
Olivia Schmidt
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