Types of Marriages in South Africa
All marriages are considered equal in South Africa, and each type holds its particular significance and relevance for different people.
In South Africa, three types of marriages are recognized by law:
• Customary Marriages and
Civil Marriages are performed by a marriage officer at a Home Affairs office and are governed by the Marriage Act of 1961. These marriages are typically secular and do not require religious or cultural traditions.
On the other hand, Customary Marriages are governed by the Recognition of Customary Marriages Act of 1998. They are recognized as valid if they follow the customs and traditions of the parties involved. These marriages may involve exchanging gifts or paying lobola (bride price) and may be conducted by a traditional leader or elder.
Customary Unions, also known as same-sex marriages, are governed by the Civil Union Act of 2006, allowing same-sex couples to enter into a legally recognized union. These unions are performed by a marriage officer and offer the same rights and responsibilities as a civil marriage.
The first and most common type of marriage in South Africa is Civil Marriage. Around 130,000 people get married each year in South Africa this way.
What is a Civil Marriage?
A civil marriage is a legally acknowledged relationship between two people. In South Africa, it is assumed that a civil marriage is “in community of property.” This means the couple’s assets and debts are added together and split equally unless something different is written in an antenuptial agreement.
If an antenuptial agreement states that the marriage will be “out of community of property,” it signifies that the couple’s assets and liabilities will be kept separate.
The “accrual system,” which defines how the couple’s joint assets will be distributed in the event of a divorce or the death of one spouse, may also be specified in the antenuptial contract.
People Can Enter into Three Distinct Types of Civil Marriage:
1. Marriage In Community of Property (a sharing of assets)
2. Marriage Out of Community of Property – subject to the Accrual System.
3. Marriage Out of Community of Property – with the Accrual System’s Excluded*
Note: You must have an Antenuptial Contract prepared by an Attorney who is a Notary Public.
These contracts are then sent to the Deeds Office for Registration. Once that is complete, they are fetched from the Deeds Office and handed to you.
Some Advantages of Civil Marriages Are:
This marital regime grants partners certain legal benefits. These benefits can only be awarded to couples who have entered into a legally recognised civil marriage.
You may have Inheritance rights, in that you may have the right to inherit from your spouse after they die. But remember, you both have the Freedom of Testation to leave your entire estate to someone else or make provision for others in your will.
You must support each other depending on the needs of your spouse.
When a spouse dies, you may claim spousal maintenance from the deceased’s estate.
Some Disadvantages of Civil Marriages Are:
The main disadvantages of a Civil Marriage are that it’s not nearly as easy to terminate.
More Facts about Civil Marriages
You automatically accept specific rights and responsibilities as husband and wife when you marry.
In a Civil Marriage, the married man and woman usually share the same residence. However, there is no legal duty for the couples to live together, although they should support and care for each other.
These couples must maintain the family home, also support and care for any children they have. They must provide for them, feed and clothe them, supply medical care for them – and ensure that their children have, at least, the bare necessities of life.
These days, it’s unremarkable to hear that women control one-third of South African households.
It’s important to note that it is only possible to enter a Civil Marriage as a man and woman.
(Same-sex partnerships are available in South Africa, but not through Civil Marriage.)
The default marital regime for civil marriages is a Marriage in Community of Property.
Couples can ‘wed’ through forming a Civil Union – also known as a Civil Partnership.
Civil Unions were introduced in 2006 as a type of marriage in South Africa that should be registered for both same-sex partners and opposite-sex partners.
Civil Unions allow couples the same rights and responsibilities as Civil Marriages, with the main difference being its acceptance of all types of relationships.
Civil Unions make up the minority of marriages in South Africa, with only 1,771 registered in 2021.
They are similar in some ways to a Domestic Partnership. However, they were initially intended as an alternative for protecting same-sex couples’ rights in circumstances when marriage was not yet available for them.
Civil unions are legally recognised arrangements that are similar to civil marriages. They were created initially to provide legal recognition for same-sex couples.
The default marital regime for civil unions that is applicable is a Marriage in Community of Property.
Similar to Civil Marriages, there are three different types of Marital Regimes available to Customary Marriage:
1. Marriage In Community of Property
2. Marriage Out of Community of Property – subject to the Accrual System
3. Marriage Out of Community of Property – with the Accrual System’s Exclusion.
Customary marriage is another type of marriage in South Africa that can come into place according to indigenous African customary law.
Customary marriages make up the second most popular type of marriage in South Africa, with 2,789 unions registered by the Department of Home Affairs.
Note: You should register your Customary Marriage at the Department of Home Affairs.
However, it’s not necessary for the validity of the marriage, and failure to so do does not render the marriage void.
The Customary Marriages Act came into power in 1998. It is a South African statute whereby marriages performed under African Customary Law, including polygamous marriages, are now recognised as legal marriages.
The participating parties must be competent to marry each other. This simply means that they must not be blood relatives also, that neither of the parties should already be in a civil marriage.
Similar to Civil Marriages, there are three different types of Marital Regimes available to Customary Marriage:
1. Marriage In Community of Property
2. Marriage Out of Community of Property – subject to the Accrual System
3. Marriage Out of Community of Property – with the Accrual System’s Exclusion.
To be considered for a customary marriage, the couple involved must be over 18 years old and agree to be married by Customary Law. Along with this, their marriage must be celebrated as the customary law describes.
Interestingly, customary marriage is the only type of marriage that may be entered into by more than two individuals. Polygamous marriages are being recognised in African customary law.
Polygamy is a relationship wherein more than one two persons are involved.
Polygamy is the opposite of monogamy, wherein one person marries one spouse.
Polyandry is where a woman marries more than one man.
The default marital regime is that of a Marriage in Community of Property.
Below Are the Pre-Requisites for Customary Marriages:
The parties must enter into the marriage according to the traditions and customs of the parties.
The marrying parties must be at least 18 years old.
Should any of the parties be below 18 years old, then both their parents or legal guardians must consent to the marriage.
The parties must not be blood relatives, e.g. a brother and sister are not allowed to marry each other.
All of the parties involved must give their consent for the validity of the marriage.
An incapacitated person, e.g. Mentally insane, will not be able to get married.
Lobola is an unnecessary payment – in terms of the Act – but deemed as an integral part of concluding a customary marriage.
Contrary to popular belief – this is not a real marriage, and no law controls the rights of the concerned parties.
If people co-habit in the absence of a Cohabitation Agreement, it will be tough on both parties when the partnership ends – either through choice or death.
There isn’t a law regulating parties’ rights who enter into a cohabitation relationship without an Agreement.
That might come as a shock to many people who are under the erroneous conviction to the contrary.
South African law does not recognise Common Law Marriages.
Therefore, if a couple – regardless of gender – decides to live together without being legally married, their union is not recognised and has no rights.
It doesn’t matter how long that relationship has lasted. The duration is of no importance.
What does matter is that at the beginning of the relationship, if a Cohabitation Agreement was drafted, you will have rights according to the contents of that Agreement.
Without such an Agreement, South African Law provides you with no legal standing.
The number of Co-Habitants is increasing each year, with people believing they will receive significant benefits should the relationship end.
Sadly, without an initial Agreement, the benefits are only your memories when such relationships end.
