Marriages

How can a person get married in South Africa?

A person in South Africa can get married in terms of a civil marriage, customary marriage, religious marriage, or a civil union.

What are the differences between these marriage types?

Civil marriage

  • To enter into a civil marriage, there must be a man and a woman who must consent to the marriage, and who must be 18 years of age or older.
  • A party under 18 years of age needs the permission of his/her parent/s or legal guardian/s before getting married.
  • A civil marriage requires the parties to choose one of three marital regimes:
    • marriage in community of property.  There is one estate between a husband and wife. Assets and debts acquired prior to or during the marriage are shared equally (50%). Both parties are jointly liable to creditors. This marital regime automatically comes into existence unless another regime is selected.
    • marriage out of community of property.  The spouses have their own estates, prior to and during the marriage ("what is mine is mine and what is yours is yours"). Each spouse can enter into a contract without the other's assistance and without being liable for each other's debts. Prior to the marriage, an antenuptial contract is concluded (the antenuptial contract describes what the estates consist of).
    • marriage out of community of property with the accrual system.  This is identical to a "marriage out of community of property" but there is an accrual system. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate once the marriage dissolves through death or divorce. The accrual system does not automatically apply and a couple must select this system prior to the conclusion of their marriage. 

Customary marriage 

  • A customary marriage entered into before 15 November 2000 is governed by customary law prevailing at the date of marriage - it is not protected by the law.
  • Since 15 November 2000 a customary marriage has been given full recognition by the law, irrespective of whether it is monogamous or polygamous. 
  • Parties married prior to 15 November 2000 may apply to the High Court to change the legal consequences of their marriage to create equal status and capacity for both husband and wife (prior to 15 November 2000 the husband controlled and owned all the property where the wife was treated as a minor).
  • Since 15 November 2000: 
    • there is equal status and capacity for both husband and wife;
    • both parties must be over 18 years of age, agree to the marriage under customary law, the marriage must be celebrated according to the prevailing customary law in their community, and the marriage must be registered with the Department of Home Affairs within 3 months; 
    • the marriage is dissolved through death or divorce;  
    • a monogamous customary marriage is in community of property unless the parties stipulate otherwise; and
    • in a polygynous marriage, the husband must apply to the High Court for permission and 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).

Religious marriage 

  • This type of marriage has limited protection in law, for example:
  • a spouse, upon the death of the other spouse, may approach a Maintenance Court for a maintenance order against the deceased spouse's estate;
  • the parties to the marriage should be awarded the same damages as parties to a civil marriage where a widow can claim damages for loss of support after the death of her husband (for example against the Road Accident Fund);
  • a spouse may inherit in terms of the law of intestate succession (when a person dies with no will);
  • spouses must honour their marriage contract entered into between themselves;
  • the mother is given custody and legal guardianship over her minor children and the husband must apply to the High Court if he wants access rights to his children (both parents must support the child/ren); and
  • spouses are protected against domestic violence.
  • A religious marriage must be treated as a marriage out of community of property excluding the accrual system.

Civil union

  • The law affords protection to a same sex civil union (which became legal on 1 December 2006).
  • Formalities are required for a civil union:
  • the union must be monogamous;
  • a marriage officer must solemnise a civil union (a religious denomination or organisation may apply in writing to the Minister of Home Affairs to be designated to solemnise marriages);
  • it must be undertaken in the presence of the parties;
  • there must be at least 2 (two) competent witnesses;
  • the parties must provide an identity document to the marriage officer; and
  • the couple must choose one of the three marital regimes afforded in a civil marriage.

Key 

  • CUSTOMARY MARRIAGE: refers to the traditional customs and culture of South Africa's indigenous people.
  • RELIGIOUS MARRIAGE: refers to a marriage in terms of a religion such as the Islamic or Hindu faith.
  • CIVIL UNION: refers to a same sex partnership.
  • MONOGAMOUS MARRIAGE: refers to a marriage where a man has one wife at a time.

How can Legal Eagle help you?  

Legal Eagle can assist you with the following to: 

  • Advise you on the advantages and disadvantages of the type of marriage to enter into.   
  • Draw up an antenuptial contract, which is part of our extended services (Siyandisa).  
  • Assist you with an application for the change in a marital regime.