Navigating The Different Types Of Marriage In South Africa
The legal landscape for marriages is equally varied in the rainbow nation of South Africa, where we celebrate diversity. From civil unions to customary marriages, each type carries its own set of rules and regulations. So, what are the different types of marriage in South Africa?
Three types of marriage in South Africa are recognized by law: civil marriage, civil unions, and customary marriages. The Draft Marriage Bill of 2022 proposes to change the laws to recognize previously unrecognized religious marriages. Unfortunately, domestic partnerships are not recognized.
To better understand the different types of marriages in South Africa, we will explore the prerequisites and nuances of the various marriage contracts. Hopefully, this explanation will help you navigate the landscape of marital unions in South Africa.
Prerequisites For Marriage In South Africa
Before delving into the types of marriage in South Africa, let’s outline the general prerequisites for a valid marriage. Both parties must be over 18 years old and give their consent. For those under 18, parental or guardian permission is required.
Certain restrictions exist, such as prohibiting marriages between closely related individuals or having more than one marriage simultaneously, except for specific instances in customary marriages. The ceremony must be conducted by a marriage officer and witnessed by two individuals. Finally, you must register the union with the Department of Home Affairs.
A civil marriage in South Africa is a legally recognized union between a man and a woman, governed by the Marriage Act 25 of 1961. By default, it is considered a marriage in community of property, meaning assets and debts are shared equally unless specified otherwise in an antenuptial contract.
Three distinct types of civil marriages exist: in community of property (COP), out of community of property (COP) with the accrual system, and out of community of property (COP) without accrual. Same-sex partnerships are not possible through civil marriage, but civil unions are an alternative for such couples.
Let’s look closer at the three types of civil marriages.
Marriage In COP
Marriage in community of property combines all assets and debts into a joint estate, the default in South Africa, unless otherwise specified in a contract. This arrangement includes individually purchased property, with the other spouse entitled to a 50% share, except for assets explicitly excluded, such as inheritances stated in a will.
Marriage Out Of COP With Accrual
An antenuptial contract can also specify a marriage out of COP with the accrual system. Here, the couple keeps their assets separate during the marriage, but in case of divorce, the appreciation in the value of assets is divided equally.
Marriage Out Of COP Without Accrual
Alternatively, couples can opt for a marriage out of COP without accrual. In this case, each spouse’s assets remain separate, and there is no sharing of the appreciation in asset values upon divorce.
A civil union in South Africa is a legally recognized marriage between two individuals, open to same-sex and opposite-sex partners, introduced in 2006 through the Civil Union Act 17 of 2006. Civil unions automatically default to a marriage in community of property, similar to civil marriages, unless an antenuptial contract is entered into before the marriage registration.
Though less common, they provide the same legal rights and responsibilities, serving as an alternative for couples who wish to avoid religious associations linked to civil marriages.
Customary marriage in South Africa is a union negotiated and celebrated according to indigenous African customary law and recognized under the Recognition of Customary Marriages Act 120 of 1998.
This type of marriage, whether monogamous or polygamous, receives complete legal protection, and its marital regime is automatically considered in community of property unless otherwise specified in an antenuptial contract, similar to civil marriages or civil unions.
The Act defines three prerequisites for a valid customary marriage. Both parties must be over 18, consent to marrying under customary law, and celebrate the marriage according to their community’s customary law.
Importantly, registration alone does not validate a customary marriage, and parties must meet specific conditions defined by the Act. Customary marriages also allow for polygamy, and legal advice is recommended to ensure the protection of all parties involved.
Other Unions In South African
Civil unions, civil marriages, and customary marriages are not the only partnerships in South Africa. There are other religious marriages, such as Hindu and Islamic marriages, and partnerships where no marriage ceremony occurs.
Religious Marriages (Islamic and Hindu Marriages)
Until recently, South African law did not recognize religious marriages, such as Islamic and Hindu marriages. Instead, the law provided spouses married under these regimes with limited protection in specific instances, including maintenance orders against the deceased spouse’s estate and protection against domestic violence.
Recently, this has changed with the proposed Marriage Bill of 2022, which reflects the South African Legislature’s desire to amend marriage laws, aiming to acknowledge diverse intimate partnerships without discrimination based on gender, sexual orientation, or various beliefs such as religion and culture. Thus, the new laws will seek to give religious marriages the same legal rights as civil marriages, civil unions, and customary marriages.
Domestic partnerships, otherwise known as universal partnerships and common-law marriages, whereby two individuals live together in a permanent, intimate relationship without marriage, are not recognized under South African law.
One way to afford these partnerships with some form of legality in the event of death or a breakdown of the relationship would be for the two parties involved to enter into a cohabitation agreement. Without this agreement, no legal standing would be attached to the relationship.
South Africa’s diverse population is reflected in its various marriage options. Whether you choose a civil marriage, customary marriage, or civil union, understanding the legal implications is crucial for a harmonious and legally secure union.
As you embark on the journey of marriage, you should explore the options to find the one that best suits your needs and desires. If you have any questions about the different types of marriage in South Africa or would like to put together an antenuptial contract or cohabitation agreement, please don’t hesitate to contact us. Our Burnett Attorneys & Notaries team would gladly assist you in this endeavour.