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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