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Marriage in South Africa

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In South Africa, marriage exists in a number of different forms, as a result of the diversity of religions and cultures in the country. A man in South Africa may have more than one spouse but a South African woman may only have one spouse. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples.[1] Since 1998 the law has recognised marriages, including polygynous marriages, conducted under African customary law,[2] as well as religious laws such as Islamic law. In 2006 the South African constitutional court ruled in favour of recognizing same-sex marriage.[3] It is currently the only country in the world to recognise both polygamy and same-sex marriages, albeit not in conjunction.

South Africa outlawed marital rape in 1993.[4]

According to the 2011 census, 36.7% of South Africans aged 20 or older were married. During the year 2011 a total of 173,215 new marriages were recorded.

Marrying

There are three different laws under which a marriage may be formed in South Africa:

  • The Marriage Act, 1961,[5] which allows for the solemnisation of a civil or religious marriage between a man and a woman.
  • The Recognition of Customary Marriages Act, 1998,[6] which allows for the registration of marriages under African customary law. Some communities' customary law allows for polygynous marriages, and these are recognised subject to certain conditions.
  • The Civil Union Act, 2006,[7] which allows for the solemnisation of a civil or religious marriage or a civil partnership between two people regardless of gender. The legal consequences of a marriage under the Civil Union Act are the same as those of a marriage under the Marriage Act.

A person may only be married under one of these laws at a time, except that a couple in a monogamous customary marriage can contract a marriage with each other under the Marriage Act.

Marriages under the Marriage Act and the Civil Union Act must be solemnized by a marriage officer and in the presence of two witnesses. Magistrates are ex officio marriage officers, and civil servants (in practise usually officials of the Department of Home Affairs) are appointed as marriage officers by the Minister of Home Affairs. The Minister may also appoint ministers of religion as marriage officers; they cannot solemnize marriages under the Civil Union Act unless their denomination has applied to the Minister to be registered to do so.

The spouses must be over 18 to form a valid marriage, except that a girl over 15 may marry under the Marriage Act with the consent of her parents. A person may not marry his or her direct ancestor or descendant, sibling, uncle or aunt, niece or nephew, or the ancestor or descendant of an ex-spouse.[8]

Financial consequences

There are several marital property regimes which can apply to a marriage in South Africa. By default, if a couple does not sign an antenuptial contract before the marriage, they are married in community of property, which means that all of their assets and liabilities (even those acquired before the marriage) are merged into a joint estate, in which each spouse has an undivided half-share. Each spouse has equal power to deal independently with the estate, except that certain major transactions require the consent of both spouses.[9]

Spouses can marry under a different property regime by executing an antenuptial contract before a notary public; to be effective against third parties, the contract must also be registered in a deeds registry within three months from the date of execution. An antenuptial contract excludes community of property and community of profit or loss, so that each spouse maintains a separate estate with separate assets and liabilities. The contract can also make specific provision for the handling of property and its distribution after death or divorce. In marriages contracted since 1984 with an antenuptial contract, the accrual system will apply to the marriage unless it is specifically excluded by the contract. Under the accrual system, the spouses' property remains separate for the duration of the marriage, but at the time of death or divorce their estates are adjusted so that the difference in "accrual" between the two estates is divided equally. "Accrual" is the increase of the net value of the estate from the marriage's commencement to its dissolution.[9] However, the accrual system does not apply if one of the estates is insolvent at the time the marriage ends. In calculating the adjustment, the minimum value an estate of a party can have is zero; negative estate values are not taken into account.

The financial consequences of marriages under African customary law entered into before 2000 are governed by the applicable customary law. In those entered into after 2000, if the marriage is monogamous the same rules apply as for civil marriages. If the marriage involves a second or subsequent wife, the law requires the husband to apply to court to approve a written contract that will regulate the future matrimonial property system of his marriages.

The doctrine of the marital power, which gave the husband exclusive control over the estate in a marriage in community of property, and the power to administer the wife's estate in a marriage out of community of property, was abolished in 1984 for all future marriages, and in 1993 for all marriages.

Divorce

South African law provides for no-fault divorce based on the "irretrievable breakdown" of the marital relationship. The courts may accept any relevant evidence of breakdown, but the law specifically mentions one year's separation, adultery, and habitual criminality as factors which may prove irretrievable breakdown. A divorce may also be obtained on the grounds of incurable mental illness for two years, or continuous unconsciousness for six months.

Divorce cases are heard in the High Courts or, since 2010, in the regional civil magistrates' courts. A court has the jurisdiction to hear a divorce if either of the spouses is legally domiciled within the geographical jurisdiction of the court, or if either spouse is "ordinarily resident" (i.e. normally lives in) the jurisdiction and has been ordinarily resident in South Africa for at least a year.

Divorce of same-sex couples is subject to the same law as divorce of opposite-sex couples. Divorce for marriages under customary law is also subject to the civil law, with certain modifications to account for the fact that customary marriages may be polygynous.

Statistics

According to the 2011 census, of South Africans aged 20 or older, 43.7% had never been married, 36.7% were married at the time of the census, 11.0% were living together like married partners, 5.7% were widowed, 0.9% were separated, and 1.9% were divorced.[10]

In 2011, the Department of Home Affairs registered 167,264 marriages under the Marriage Act, 5,084 customary marriages under the Recognition of Customary Marriages Act, and 867 marriages or civil partnerships under the Civil Union Act. In the same year 20,980 divorces were reported.[11]

See also

References

  1. ^ Minister of Home Affairs and Another v Fourie and Another [2005] ZACC 19 at para. 3, 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005)
  2. ^ Pierre de Vos (11 December 2006). "Customary Marriages unconstitutional?". Constitutionally Speaking. Retrieved 27 February 2007.
  3. ^ "SA same-sex marriage law signed". BBC News. 30 November 2006. Retrieved 27 February 2011.
  4. ^ "Marital Rape in South Africa – Enough is Enough | Open Society Initiative of Southern Africa". OSISA. 2012-10-25. Archived from the original on 2013-09-15. Retrieved 2013-08-17.
  5. ^ Marriage Act, No. 25 of 1961, as amended
  6. ^ Recognition of Customary Marriages Act, No. 120 of 1998, as amended
  7. ^ Civil Union Act, 2006
  8. ^ Himonga, Chuma (2007). "Part II: Persons and Family". In du Bois, François (ed.). Wille's Principles of South African Law (9th ed.). Cape Town: Juta & Co. pp. 243–244. ISBN 978-0-7021-6551-1.
  9. ^ a b "Marriage: the legal aspects" (PDF). Law Society of South Africa. 2011. Archived from the original (PDF) on 14 November 2012. Retrieved 2 February 2013.
  10. ^ "Community Profiles – Family database". Census 2011. Statistics South Africa. Archived from the original on 1 October 2008. Retrieved 19 November 2011.
  11. ^ "Statistical release P0307: Marriages and divorces, 2011" (PDF). Statistics South Africa. 10 December 2012. Retrieved 30 January 2013.

Further reading

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