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February 25, 2017

Forms of marriage in South Africa


In South Africa, there are several ways of getting married, depending on religion, custom or tradition.
South Africans choose to get married in terms of customary law, religious rites, or in a civil or church marriage.

Customary Marriages
·         The Recognition of Customary Marriages Act 120 of 1998 gives recognition to customary marriages which are concluded in terms of the customs and traditions observed among the indigenous people of South Africa.
·         The legal requirements for a customary marriage are that the prospective spouses must both be above the age of 18 years, must both consent to be married to each other under customary law and the marriage must be negotiated and celebrated in accordance with customary law.
·         Where a spouse is not a partner in any other existing customary marriage, and where the parties have not concluded an antenuptial contract, the marriage is regarded as being in community of property and of profit and loss.
·         If husband wishes to conclude a further customary marriage, he must apply to the Court to approve a written contract which will regulate the future property rights of all parties concerned.
·         Spouses in a customary marriage may conclude a civil marriage in terms of the Marriages Act of 1961, but only if neither of them is a spouse in an existing customary marriage.

Civil Marriages
·         The Marriages Act 25 of 1961 governs the civil unions between spouses.
·         The Act requires that the parties be married by a licensed Marriage Officer, who registers the marriage at Home Affairs.
·         The Matrimonial Property Act 88 of 1984, deals with matrimonial property law, such as antenuptial marriage contracts that govern the matrimonial property regime of the parties (marriages out of community of property, with or without the accrual system).
·         The accrual system shall automatically apply unless specifically excluded in terms of the antenuptial contract.
·         If the parties did not conclude an antenuptial contract, then the marriage is automatically in community of property.

Marriage by Hindu Rites
·         There is no automatic legal recognition of Hindu marriages in terms of The Marriages Act. Instead, a marriage by Hindu rites is governed by the tenets of the Hindu faith and not by civil law.
·         If the parties wish to be bound by South African civil law, they must formally get married by a person who is registered in terms of the Marriages Act and who may perform a civil marriage in tandem with the customary marriage, and issue the parties with a marriage certificate in terms of the Marriage Act.
·         If the parties are married by Hindu rites, but no civil marriage is registered, then they are not married in the eyes of South African law.

Marriage by Muslim Rites
·         Similarly, parties married by Islamic or Muslim rites are regarded as unmarried.
·         However, by registering a marriage in terms of the Marriages Act, spouses can obtain recognition and regulate the proprietary consequences of their marriage.
·         The role of the (Imaam/ Alim) Muslim cleric, if he is an authorised marriage officer, is to solemnise the marriage in terms of the Marriage Act, after the (Nikah) Islamic marriage ceremony. He must thereafter register the marriage formally with the Department of Home Affairs.

Civil Unions and Civil Partnerships
·         The Civil Unions Act 17 of 2006 regulates the solemnization of civil unions, either by way of a marriage or a civil partnership.
·         Same-sex couples now enjoy the status and benefits, and the responsibilities, that marriage gives opposite-sex couples.
·         A person may only be a partner or spouse in one marriage or civil partnership at any given time and whilst in a civil union, may not conclude a marriage under the Marriages Act or the Recognition of Customary Marriages Act.
·         A civil union is one in community of property unless the partners concluded a prior antenuptial contract.


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