![](https://www.dotnews.co.za/Code//Uploads/Article/d1452cd4-e50f-4e07-ba87-24161c5cc2f3.jpg)
Marriage in South Africa - Part 2: How does South African law apply to marriages in South Africa?
New Marriage Act
“The Department of Home Affairs are in the process of drafting new marriage laws to submit to Cabinet by 31 March 2023.
Current legislation is noted as having been developed ‘without an overarching policy that is based on constitutional values’ and the ‘understanding of modern societal dynamics.’
Over the years, the State sought to give recognition to different marriage rituals through passing a range of different marriage laws.
The intention of the new Marriage Act is that it should enable South Africans of different sexual orientation, religious and cultural persuasions, to conclude legal marriages that will accord with the doctrine of equality, non-discrimination and human dignity as encapsulated in the Constitution of the Republic of South Africa.
The green paper has been gazetted for public comment in May 2021 and the white paper was due to be submitted to Cabinet for approval by 31 March 2022.” (Extracts from BusinessTech – 24 March 2022)
Currently, there are three types of legal marriages in South Africa:
- Civil Marriages, in terms of the Marriages Act of 1961;
- Civil Unions, in terms of the Civil Union Act, 17 of 2006; and
- Customary Marriages, in terms of the Recognition of Customary Marriages Act 120 of 1998.
Civil Marriages: This is the most common form of marriage in South Africa. Any marriage solemnised under the Marriage Act of 1961 is referred to as a civil marriage. When thinking of marriage in its most traditional form you are thinking of a civil marriage and can only be between two people of opposite sexes.
Only monogamous, heterosexual civil marriages may be solemnised in terms of this Act.
Both spouses must be 18 years or older, but the Act does make provision for minors to be married under certain circumstances.
Civil Unions: This generally refers to any marriage or civil partnership solemnised and registered under the Civil Union Act of 2006.
Customary Marriages: The basis for the Recognition of Customary Marriages Act to apply is that the marriage must have been arranged, negotiated and entered into or celebrated in accordance with customary law of South Africa, including the fixing of “lobola” and that both spouses, 18 years or older, must have consented thereto.
Why did we need more Acts after the Marriage Act of 1961, to marry people and how are these Acts different from the Marriage Act of 1961?
Civil Union Act of 2006:
Marriages: The primary function of the Civil Union Act was to formalise same-sex weddings.
Civil Unions are often referred to as “same-sex” unions.
This is however a misnomer as the act defines a civil union as “a voluntary union between two persons of the same sex or of opposite sexes, both older than 18, solemnised and registered either by way of marriage (or civil partnership), to the exclusion, while it lasts, of all others.”
This means that heterosexual couples may also be married under the Civil Union Act, which may come as a surprise to many people…
The secondary function of this Act was to allow for the registration of marriage officers other than those prescribed in terms of the Marriages Act.
The act further provides for Civil Partnerships, irrespective of gender, for people involved in a monogamous relationship to enter into a civil partnership with each other, being legislature’s attempt to create a mechanism whereby two people can formalise their relationship in instances where they do not wish to marry, but require legal recognition of their relationship.
Both parties must be 18 or older, with no allowance for minors to marry.
The Matrimonial Property Act is applicable in exactly the same manner as is applicable to persons married in terms of the Marriage Act.
Customary Marriages Act 120 of 1998:
This act implies that all customary marriages concluded before or after 15 November 2000 are valid.
All customary marriages concluded after 15 November 2000 without an ANC are deemed to be in community of property, unless parties enter into an Antenuptial contract regulating their marriage as either out of community of property and profit or loss, with or without the accrual system.
No spouse, during the subsistence of this marriage, will be competent to enter into any other marriage, including any other customary marriage.
A further customary marriage can however be approved on application to the court for approval of a written contract which will regulate the future matrimonial property system of subsequent marriages (Section 7(6) of the Customary Marriage Act).
Section 7(7) requires the Court to terminate the system regulating the existing marriage and:
- i.to effect a division of the matrimonial property;
- ii.ensure an equitable distribution of property; and
- iii.take into account all relevant circumstances of family groups which would be affected.
All parties affected are to be joined in such proceedings and upon approval, the order and the contract regulating the division of property, is to be sent to the Registrar of Deeds of the area in which the court is situated.
A partner in a customary marriage may not enter into a civil marriage or civil union with anyone other than their customary spouse.
Why two/three laws for the same thing?
Under the South African Constitution same-sex marriages are protected. South African law had to reflect this and make provision for it.
The original intention of Home Affairs was to amend or re-write the existing marriage act. However, there was fierce objection, mostly from religious communities who oppose same-sex marriage and who also feared they would be forced to solemnise same-sex weddings over their objections. It was far easier than to simply write a new law to cover it.
The consequence of the above for Marriage Officers is that those who wish to solemnise same-sex marriages have to register for it. Those that object or do not wish to simply carry on as they are under the existing 1961 Marriage Act.
Ideally there should just be one law covering both. The Department of Home Affairs are currently in the process of doing just that. It is their intention to bring all forms of marriage under one law and one process. This is very good news as the current arrangement has created confusion.
And, finally, to repeat: There is no difference in law between a Civil Marriage and Civil Union. Whether same-sex or not, both are regarded as a valid South African marriage with the full extent of what this means under the law, being applicable to both.
The Customary Marriage Act, on its part, serves to address a common problem, of people, especially in rural areas, being unaware, or even unwilling to accept the equal division of matrimonial property to also apply to customary marriages. This is an attempt to further address the informal separation between spouses and now require a formal dissolution of customary marriages by court by virtue of a decree of Divorce.
Contact me, your FNN (Friendly Neighbourhood Notary), for further information.
Sonja Janse Van Rensburg
Attorney, Notary & Conveyancer
Prokureur, Notaris & Aktevervaardiger
Van Zyl Kruger Inc
Cell Nr: 082 781 3600
E-Mail Adrress: sonja@vzk.co.za
Provided by Van Zyl Kruger
© DotNews. All Rights Reserved.