Marriage

Marriage is one of the most important steps that a couple can take. South African marriages are legally protected, and certain benefits are given to spouses upon the conclusion of a marriage.

Source: A simple guide to South African Family Law by Nthabiseng Monareng
Marriage is one of the most important steps that a couple can take. South African marriages are legally protected, and certain benefits are given to spouses upon the conclusion of a marriage. These benefits include the duty to support each other, to claim spousal maintenance and the right to have a share in each other’s assets.
 The right to share in each other’s assets depends on the kind of matrimonial property arrangement that you and your partner entered into. For example, if you are married out of community of property without the accrual system, you do not have the right to share in your spouse’s assets, although you and your spouse do have the duty to support each other.
Civil marriage
In order for a marriage to be legally recognized, the following requirements have to be complied with:
·         The solemnization of the marriage must be held in a church, public place or private house, with open doors and in the presence of at least two witnesses.
·         The marriage must be solemnized by a duly appointed marriage officer, for example a duly appointed minister of religion, Home Affairs official or marriage officer such as a magistrate.
Make sure that the person who is conducting the wedding is in fact legally entitled to perform the wedding or else you risk the chance that your marriage may not be legally recognized.
·         The couple must agree to be married to each other and must declare their willingness in the presence of the marriage officer and witnesses.
It is important for each person entering the union to understand the legal consequences of a marriage and ensure that they comply with the legal consequences.
Documents required
·         Identity documents or an affidavit in a prescribed form. If one of the partners is not a South African, that partner’s passport is required.
·         If divorced, the final decree of divorce.
·         If widowed, the death certificate of the deceased.
As soon as the marriage has been solemnized, the couple, together with two witnesses, must sign the marriage register. The marriage officer will issue the married couple with a marriage certificate. The marriage officer will then submit the marriage register to the department of Home Affairs for recording.
Marriage of a minor child
A minor is a child under the age of eighteen years.
A minor can get married only when the following requirements have been complied with:
·         Written consent from both parents must be obtained. This applies when both parents have guardianship of the child. If only one parent has guardianship, that parent’s written consent is required.
·         If a legal guardian is raising the child, his or her written consent is required.
·         If the minor child has no parents or legal guardian or they are unable to give consent (for example, owing to their absence, insanity, or any other reason), the child has to ask for consent from the Commissioner of Child Welfare.
·         If consent is not obtained from the parents, legal guardian or Commissioner of Child Welfare, the child has to apply to the High Court for consent.
·         The court will not give consent unless it is in the best interests of the minor child to get married.
When a minor gets married without getting the required consent, the marriage will be legal unless it is dissolved (set aside) by the court.
The court will make an enquiry to ascertain whether the marriage is in the best interest of the child and will set aside the marriage only if it is not in the child’s best interests.
The parents or guardian of the child must, within six weeks of learning about the marriage, apply to the High Court to have the marriage set aside. The minor child can also apply to have the marriage set aside while he or she is still a minor or within three months of becoming an adult (that is, when no longer a minor).
Customary marriage
Customary marriage is a marriage concluded in accordance with black people’s traditions and customs, and it includes the payment of lobolo.
Customary marriages were not regarded as legally valid marriages until 15 November 2000, when the Recognition of Customary Marriages Act (RCMA), which regulates customary marriages, was adopted as law. In terms of the RCMA, where couples entered into marriages before 15 November 2000, their marriage will be regulated by custom and tradition. Marriages entered into on or after 15 November 2000 are governed by the RCMA.
Requirements
·         Both of the marrying persons must be at least eighteen years old.
·         Both must agree to marry each other under customary marriage law.
·         The marriage must be negotiated and entered into in terms of custom. This means that lobolo alone is not sufficient. For the marriage to be valid there must be payment of lobolo, and customary rituals must also be held to complete the process.
Polygamous marriages
The RCMA allows a man to have more than one wife.
Requirements
·         A husband who is married and wants to take another wife has to make an application to the High Court. The court has to approve a written contract that will regulate the matrimonial property system of the marriages.
·         The application has to be made before the prospective/proposed subsequent marriage takes place.
The aim of making the application to court is:
·         To see whether the husband intends all or only some of the wives to benefit from his estate.
·         To ensure that there won’t be any prejudice suffered by the wives.
The court can refuse to grant the order, thereby refusing to allow the husband to take another wife, if the wife or wives the husband is married to will be prejudiced by his taking another wife.
Should the husband marry another wife without making the application to court, there is a high possibility that the second marriage will not be legally recognized. This will result in the second wife losing out on the benefits given to married spouses.
Registration of customary marriages
In terms of the RCMA, a couple has three months to register their customary marriage, but non-registration does not make the marriage illegal. This means that if you are in a customary marriage and you did not register your marriage, the marriage is still legally recognized.
Problems relating to non-registration
·         Your spouse might deny the existence of the marriage.
·         If you are not happy in the marriage and you want to get out of it, you need a registration certificate in order to file for a divorce. Your spouse might refuse to register the marriage at that stage, thereby making it difficult for you to file for divorce and for you to get the benefits you are legally entitled to.
Registration of customary marriage within three months of the marriage
·         The married couple, together with witnesses from each side of the family, must go to Home Affairs to register the marriage.
·         If one spouse refuses to have the marriage registered, the other spouse can go and have the marriage registered alone, accompanied by witnesses. The officers at Home Affairs might investigate in order to make sure that the parties are married to each other. This helps to prevent fraud.
Registration of customary marriages three months or more after the marriage
·         The married couple or a spouse has to go to court and make an application to have the marriage registered.
‘Court’ means a High Court of South Africa or a Family Court, and not just a Magistrates’ Court.
·         The couple or spouse must have with them the Lobolo Agreement, the founding affidavit, and affidavits from at least two family members who can confirm that the marriage did take place.
Note: In some areas, such as the Eastern Cape, it is sufficient to take the Lobolo Agreement to the court to start the registration process.
·         They will sign a notice of motion and attach the Lobolo Agreement and affidavits.
·         Make three copies and get a court stamp.
·         Have these documents delivered to the sheriff of the court.
·         The sheriff will serve the document on the other spouse.
·         Once the documents have been served, you will get a return of service from the sheriff.
·         Take the return of service and go back to court to apply for a court date.
·         Once you have a court date, you must go to court and appear on that date. This is the day the magistrate/judge will decide on whether to order the marriage to be registered or not.
Note: The department of Home Affairs no longer supplies copies of the founding affidavit, and people whose marriages are not yet registered are having a hard time trying to have the unions registered because of the uncertainty regarding forms/documents that are needed (and what procedure is required). It is important to note that there is no specific format for the founding affidavit, and that the wording differs depending on cases and courts.