Understanding the Legal Requirements for a Valid Marriage in South Africa

“Marriage is a matter of more worth than any other contract, for it concerns the happiness of the human race” – William Blackstone, Commentaries on the Laws of England (1765). Imagine investing almost a decade in a loving relationship, only to discover that your marriage is invalid. The emotional devastation would be immense. Many couples spend their lives together without fully grasping the consequences and implications of their union, leading to shocking realisations during divorce or disputes.

This article aims to educate readers on the requirements for a valid marriage and the different types recognized in South Africa. We have three main types of recognized marriages:

1. Civil marriage
2. Civil union marriage
3. Customary marriage

Although Muslim marriages were previously not recognized, recent developments have led to their recognition under specific circumstances. However, as this area of law is still evolving, we will focus on the established frameworks governing civil, civil union, and customary marriages.

Understanding the legal frame work

It is essential for individuals to have a legal understanding of the type of marriage they wish to conclude. In South Africa, there are three primary types of marriages, each with its own governing laws.

Types of Marriages

– Civil Marriage: This is the most common type of marriage in South Africa, governed by the Marriage Act of 1961. Civil marriages are concluded between two people of different sexes (male and female).

– Civil Union Marriage: Introduced in 2006, civil unions are governed by the Civil Union Act 17 of 2006. This type of marriage is concluded between two people of the same sex (male and male or female and female).

– Customary Marriage: This type of marriage is concluded in accordance with African norms and cultural traditions. It is governed by the Recognition of Customary Marriages Act 120 of 1998.

Getting Married 

When a couple wants to get married it is advised that they should consider the type of matrimonial property system they wish to conclude in their marriage, this is how they will divide their properties in case of a dispute arising. We have 3 matrimonial property system listed as follows

Marriage In community of property– this system automatically applies if the spouse doesn’t sign the antenuptial contract. In this system the properties are jointly owned regardless of owning them prior marriage. If the dispute arises in the marriage and the parties divorce the properties will have to be shared equally meaning that your spouse in this system is entitled to 50% of each and every property involving you, this includes assets and liabilities.

Marriage out of community of property excluding accrual- when the spouses decide to marry out of community of property, they have to enter into an antenuptial contract, and this contract can only valid if it is registered in the deed’s office in accordance with section 87 of the Deeds Registries Act 47 of 1937 and signed by the notary, and it must be registered with 3 months of its execution. If the spouses wish to marry out of community of property excluding accrual, they must state that on the antenuptial contract or else their marriage can be registered as out of community of property including accrual as this apply automatic to marriage out of community of property if not stated. In this this system spouses will be able to keep all their estate on their own and as not joint estate. Meaning that if you had assets worth about R4 million before marriage then upon marriage your assets increased to R8 million, in case any dispute arises or divorce each spouse will keep its assets and not share them with another. Other spouse cannot claim from another spouse’s assets even though she contributed to its growth but they can only claim in terms of support not for a share in assets.

Marriage out of community of property including accrual- this system is also entered into by a way of antenuptial contract and the spouses are entitled to keep their assets not as joint estate, if the assets were being owned before the marriage. However, each spouse can claim from another spouse’s assets if they contributed to the growth of the assets. For example, if Jay who owned assets worth 3 million marry Cloe who has no assets. upon their marriage Cloe assists Jay to invest with his assets, and the assets now grew to R5 million meaning his assets grew with R2 million during marriage time and Cloe’s starts a business worth R1.5 million in total the assets they have within their marriage is R3.5 million and if they divorce Cloe can have a claim of up to R1 750 000, as this is her 50% of the accrual assets. This system serves as fairness and to avoid that thing of 1 spouse leaving marriage without anything while they contributed to the growth of assets.

Legal Requirements for a Valid Marriage

Marriage can be concluded in any day of the week as agreed with the marriage officer, but there are certain ceremonies that needs to be followed in order for a marriage to be valid. Without the present of the ceremony the marriage can be voidable. Here is the list of ceremony to be concluded when getting married.

For civil marriages

The marriage must take place in a religious building, it can be a public office or a private dwelling with open doors. A part of the ceremony can take place outdoor like on a beach, but the formal aspects of the wedding should be concluded in a suitable building. The formal part includes the part where a marriage officer asks the spouses whether they are willing to take each other for marriage and voluntary, exchange of rings and vows can be included here but they are not a legal requirement. The marriage will be declared valid when the officer declares the spouses, husband and wife or civil partners, also when the spouses, marriage officer and two witnesses sign the marriage register and the officer issue the marriage certificate, failing to register the marriage won’t render the marriage invalid but it is advised to register your marriage to avoid any consequences.

For customary law

Spouses who decide to marry under customary law their marriage will be governed by the Recognition of Customary Marriage Act 120 of 1998. This act became law on 15 November 2000 and the spouses must adhere to the following requirements for the validity of their marriage: 

1. the spouses who wish to conclude this marriage must both be over 18 years of age.
2. They must both consent to be married to each other under customary law. 
3. The marriage must be negotiated and entered into or celebrated in accordance with customary law
4. If one of the prospective spouses is a minor then his/ her legal guardian must consent to the marriage, if the is no guardian, then the Act provides for a substitute consent
5. The parties must no be prohibited from marriage because of relationship by blood or affinity as determined by the customary law.

Conclusion

it is important for spouses who wish to conclude a marriage to go and consult with an attorney, in order for them to know what type of marriage can they conclude based on their facts. And it is important for all the spouses to comply with the legal requirements of a valid marriage to avoid their marriage being contested or be void. Also it has to be known that a spouse who already in civil marriage can not marry for the second time whether in customary marriage if a spouse want to do that then the first civil marriage must be terminated.