Getting Married in South Africa

Relationships

Preparing to Get Married

Getting ready to tie the knot in South Africa involves a thorough understanding of legal requirements and the different types of marriages recognized by the country. It’s imperative for couples to acquaint themselves with these essentials before embarking on the marital journey.

South Africa recognizes civil marriages, customary marriages, and civil unions. Each of these marriages falls under specific laws and regulations governed by the Department of Home Affairs. Knowing the differences, legal implications, and obligations associated with each type is crucial.

Comprehend Marriage Types

Civil marriages follow regulations set forth by the Marriage Act, customary marriages are recognized through the Recognition of Customary Marriages Act, and civil unions are governed by the Civil Union Act. Couples should understand the distinct aspects and requirements of each.

South African marriages are automatically in community of property unless an ante-nuptial contract (ANC) has been signed before the marriage. Couples must understand the legal consequences, including property and financial matters, to make informed decisions.

If there’s uncertainty regarding legal eligibility, implications, or compliance with marriage requirements, it’s advisable to seek legal counsel before proceeding with the marriage. Legal advice ensures that couples are well-informed and prepared for the commitment.

Verifying your Marital Status

Before proceeding with marriage, it’s crucial to verify your marital status. The Department of Home Affairs offers various facilities for individuals to check their marital status:

Online Verification

The Department of Home Affairs provides an online facility where individuals can check their marital status using their South African ID numbers. This allows for clarity and confirmation before proceeding with a marriage.

SMS Service

An alternative method involves sending an SMS to a designated number with the ID number to confirm marital status. This service provides prompt verification for a nominal fee.

Documents Required to Enter into a Marriage

On the day of the marriage ceremony, specific documentation is necessary for validation. These include the following:

Identity Documents

Each person intending to marry must present their valid South African ID or, in the case of a foreign national marrying a South African citizen, their valid passport.

Additional Documents for Foreign Nationals

Foreign nationals marrying South African citizens need to complete the BI-31 Form (Declaration for the Purpose of Marriage) and provide necessary permits or documents.

Minors Entering Marriage

If one or both parties are minors, written consent from parents, legal guardians, or the Commissioner of Child Welfare is necessary. The consent form (Form DHA-32) is required if the minors are below specific ages.

Divorce or Widowhood

Individuals previously married or widowed must provide documentation proving the finality of their previous marriage or the death of their former spouse.

Conducting a Marriage

Solemnizing a marriage in South Africa involves adhering to specific guidelines:

Authorized Marriage Officers

Only designated marriage officers, recognized under Act No. 25 of 1961, can officiate marriages. These officers operate in Department of Home Affairs offices and religious institutions.

Wedding Venue Requirements

A marriage ceremony must occur in designated settings, such as religious buildings, public offices, or private spaces with open doors. In case of illness or injury, marriages can be conducted in hospitals or relevant facilities.

Witnesses

At least two witnesses must be present during the marriage ceremony and sign the marriage register, along with the marriage officer.

Marriage Certificates

After the solemnization of a marriage, certain steps are taken to formalize the union:

Issuing the Marriage Certificate

Following the ceremony, the marriage officer provides a handwritten marriage certificate (BI-27) free of charge. This document is signed by both parties and the witnesses.

Recording the Marriage

The marriage officer submits the marriage register to the nearest Department of Home Affairs office. The marriage details are then recorded in the National Population Register (NPR).

Additional Copies of Marriage Certificates

Understanding the process for obtaining additional copies helps individuals secure the necessary documentation for various purposes after the marriage. To obtain additional copies or different versions of the marriage certificate:

Requesting Additional Copies

Completing Form BI-130 and submitting it, along with the necessary fee, to the Department of Home Affairs or the nearest South African embassy, mission, or consulate abroad.

Types of Copies Available

Applicants can request various copies, including an abridged or unabridged marriage certificate or a vault copy of the register.

Prohibited Marriages

Certain categories of individuals are prohibited from marrying in South Africa:

Minors

Individuals under specific ages, without proper consent, cannot marry. The law safeguards minors’ interests by imposing restrictions.

Existing Marriages

Bigamy is illegal in South Africa; individuals already married cannot enter into a second marriage without proper dissolution of the previous marriage.

Understanding the nuances of consent for minor marriages helps ensure compliance with legal requirements. When a minor intends to marry, consent is crucial:

Minors (under 18) need written consent from parents or guardians. If consent cannot be obtained, a Commissioner of Child Welfare can grant it. Refusal can lead to applying to a High Court judge for consent, which requires evidence that refusal was unreasonable.

Additionally, boys under 18 and girls under 16 might need the Minister of Home Affairs’ consent.

Voiding a Minor’s Marriage

A marriage contracted without proper consent can be voided:

High Court Declaration

If consent was absent or unreasonably refused, parents or guardians can apply to the High Court to declare the marriage null and void before the minor turns 21 or within six weeks of knowledge of the marriage.

Minor’s Application

A minor can apply for dissolution before turning 21 or within three months after reaching 21.

Customary Marriages

In South Africa, customary marriages follow specific guidelines:

Defining Customary Marriage

It is a marriage negotiated, celebrated, or concluded as per indigenous African customary law.

Recognition Date

For recognition, the marriage must have occurred before November 15, 2000, or comply with stipulated requirements if after this date.

Requirements for Customary Marriages

For customary marriages, certain conditions must be met:

Compliance with Customary Law

Customary marriages are marriages conducted according to various indigenous African customs. These customs might differ among different cultural groups. To be recognized as a customary marriage, the union should align with the specific customary practices of the community.

For a customary marriage to be valid, both individuals intending to marry should be at least 18 years old. Consent to the marriage is crucial. If one of the parties is a minor, parental consent is required. If parents are absent or unable to give consent, a legal guardian can grant it. If both parents and a legal guardian cannot provide consent, a Commissioner of Child Welfare may authorize the marriage.

Prohibitions and Prior Marriages

Certain prohibitions exist concerning entering into a customary marriage:

  • Existing Civil Marriages: If a person is already in a civil marriage, they cannot enter into a customary marriage during the subsistence of the existing civil marriage.
  • Customary Marriages Post 1988: For customary marriages entered into after December 1, 1988, specific regulations apply.

Multiple Customary Marriages

While there is no explicit restriction on the number of customary marriages a man may enter into, specific legal considerations exist:

  • Court Order: If a man is already in a customary marriage and wishes to enter into another, he must obtain a court order regulating the future matrimonial property system for these marriages.

Matrimonial Property System

Determining the matrimonial property system for multiple customary marriages requires legal clarification:

  • Court Approval: A court order assists in defining how property matters will be handled across multiple customary marriages, ensuring clarity and legal compliance.

Registering Customary Marriages

Timeframe for Registration

Customary marriages must be registered within three months of taking place. The registration can be completed at any Department of Home Affairs office or through designated traditional leaders in areas where Home Affairs offices are unavailable.

Participants and Documentation

To register a customary marriage, specific individuals and documents are required:

  • Spouses: Both spouses should be present during registration and must provide copies of their valid identity documents.
  • Witnesses: At least one witness from the bride’s family and one from the groom’s family are necessary, along with the respective family representatives.
  • Parents in Case of Minors: If either of the spouses were minors during the marriage, their parents should also be present during registration.
  • Forms: The registration process entails completing Form BI-1699 and paying the required fees. Following this, the Department will issue an acknowledgment of receipt (BI-1700).

The registration of a customary marriage through the Department of Home Affairs or traditional leaders provides legal confirmation of the union. This formal recognition is essential for the marriage to be acknowledged under South African law.

Documentation

Upon completion of the registration process, couples are provided with documentation confirming the registration of their customary marriage. This documentation serves as legal proof of the union and can be used for various administrative purposes.

Importance of Registration

Registration ensures that the customary marriage is officially recognized by the government. It solidifies the legal status of the union and enables couples to access various rights and benefits provided by the state.

Registering a customary marriage in accordance with the law ensures adherence to legal requirements and community customs. This registration process ensures that the union is recognized under South African law, providing couples with legal protection and rights within the marital relationship.

Registering Multiple Customary Marriages

Prior Civil Court Order

If a male individual is already in a customary marriage and intends to enter into another customary marriage, he must obtain a court order from a competent court. This court order regulates the future matrimonial property system for all his marriages.

Provisions for Additional Marriages

According to South African law, there are certain provisions concerning multiple customary marriages:

Court Order Requirement

Before entering into another customary marriage while being in an existing customary union, a male individual must obtain a court order regulating the future matrimonial property system.

Civil Marriage Option

Alternatively, if already in a customary marriage, a person can also choose to enter into a civil marriage by following standard civil marriage procedures.

Obtaining a court order ensures that the individual complies with legal stipulations regarding the recognition and regulation of multiple customary marriages. It also facilitates legal compliance with matrimonial property laws.

Registering multiple customary marriages with the necessary court order ensures that each union complies with South African laws. This process provides legal protection and regulation for each marriage, safeguarding the rights and responsibilities of all parties involved.

Financial and Property Rights

The court order regulates the matrimonial property system for all concurrent customary marriages. This process determines how property and financial matters will be managed within each marriage, ensuring clarity and legality in the distribution of assets.

Impact on Subsequent Marriages

Entering into additional customary marriages without a court order can impact the legal standing of subsequent unions. Without proper regulation, these marriages may lack legal recognition and can lead to disputes regarding property and financial matters. Obtaining a court order mitigates such risks by legally acknowledging and regulating each marriage.

Civil Unions

Inclusivity of Civil Unions

The Civil Union Act, effective from December 2006, allows individuals, irrespective of their sexual orientation, to formalize their partnership through civil unions. This legislation offers an alternative to marriage, catering to diverse relationships and affirming equal rights for all citizens.

Conducting Civil Unions

Civil unions can be officiated by designated marriage officers representing specific religious denominations or organizations. Additionally, officers employed by the Department of Home Affairs and Magistrates’ Courts are authorized to conduct civil unions.

Several legal prerequisites must be met for the registration and validation of a Civil Union:

  • Age Requirement: Both individuals must be 18 years or older to enter into a Civil Union.
  • Marital Status: Neither party may already be married under any other legal Act.

Documentation for Civil Union Registration

To conclude a Civil Union, specific documentation is required:

  • Both partners need valid South African identity books. If one partner is a foreign national, a valid passport is necessary.
  • Completion of Form DHA-1763 (Declaration for the Purpose of Marriage), Form DHA-1766 (Civil Union register), and Form DHA-1764 (Registration of a Civil Union) is mandatory.
  • If either partner was previously married and subsequently divorced, a copy of the Divorce Order must be provided.

Compliance with Documentation

If any required documents are unavailable, one partner can submit an affidavit confirming the unavailability of these documents for the purpose of concluding the Civil Union.

Civil unions provide legal recognition to partnerships and grant both parties certain rights and responsibilities akin to those in a marriage. They establish legal obligations, inheritance rights, and other privileges akin to those within a marital union.

Equality and Recognition

The Civil Union Act reinforces the principle of equality, offering recognition and legal protection to all unions, irrespective of sexual orientation. It extends the same rights and responsibilities enjoyed by married couples to partners in a civil union, affirming their relationships under the law.

These detailed insights into various aspects of marriage in South Africa provide a comprehensive understanding of the legal requirements and steps involved in different types of marriages to assist anyone contemplating a marriage.

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