Marriage in South Africa
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.
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
Spouses can marry under a different property regime by executing an antenuptial contract before a
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
Divorce cases are heard in the
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
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
- Divorce in South Africa
- Polygamy in South Africa
- Same-sex marriage in South Africa
- Civil partnership in South Africa
- Religion in South Africa
- South African family law
- Texts on Wikisource:
References
- Minister of Home Affairs and Another v Fourie and Another [2005] ZACC 19at para. 3, 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005)
- ^ Pierre de Vos (11 December 2006). "Customary Marriages unconstitutional?". Constitutionally Speaking. Retrieved 27 February 2007.
- ^ "SA same-sex marriage law signed". BBC News. 30 November 2006. Retrieved 27 February 2011.
- ^ "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.
- ^ Marriage Act, No. 25 of 1961, as amended
- ^ Recognition of Customary Marriages Act, No. 120 of 1998, as amended
- ^ Civil Union Act, 2006
- ISBN 978-0-7021-6551-1.
- ^ 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.
- ^ "Community Profiles – Family database". Census 2011. Statistics South Africa. Archived from the original on 1 October 2008. Retrieved 19 November 2011.
- ^ "Statistical release P0307: Marriages and divorces, 2011" (PDF). Statistics South Africa. 10 December 2012. Retrieved 30 January 2013.
Further reading
- Davis, Rebecca (31 May 2013). "ConCourt: Second wife only with first wife's say-so". Daily Maverick. Retrieved 2 June 2013.