South Africa South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring countri ...

marriage Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between ...

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 Roman-Dutch law (Dutch: ''Rooms-Hollands recht'', Afrikaans: ''Romeins-Hollandse reg'') is an uncodified, scholarship-driven, and judge-made legal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries. As such, it ...

, was limited to monogamous marriages between opposite-sex couples. Since 1998 the law has recognised marriages, including

polygynous Polygyny (; from Neoclassical Greek πολυγυνία (); ) is the most common and accepted form of polygamy around the world, entailing the marriage of a man with several women. Incidence Polygyny is more widespread in Africa than in any ...

marriages, conducted under African customary law, as well as religious laws such as Islamic law. In 2006 the South African constitutional court ruled in favour of recognizing

same-sex marriage Same-sex marriage, also known as gay marriage, is the marriage of two people of the same Legal sex and gender, sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being ...

. 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. 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, which allows for the solemnisation of a civil or religious marriage between a man and a woman. * The

Recognition of Customary Marriages Act, 1998 The Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998) is a South African statute in terms of which marriages performed under African customary law, including polygynous marriages, are recognised as legal marriages. It also refo ...

, 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 The Civil Union Act, 2006 (Act No. 17 of 2006) is an act of the Parliament of South Africa which legalised same-sex marriage. It allows two people, regardless of gender, to form either a marriage or a civil partnership. The act was enacted as a co ...

, which allows for the solemnisation of a civil or religious marriage or a

civil partnership A civil union (also known as a civil partnership) is a legally recognized arrangement similar to marriage, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage ...

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 The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judici ...

are ''ex officio'' marriage officers, and civil servants (in practise usually officials of the

Department of Home Affairs An interior ministry (sometimes called a ministry of internal affairs or ministry of home affairs) is a government department that is responsible for internal affairs. Lists of current ministries of internal affairs Named "ministry" * Ministry ...

) are appointed as marriage officers by the

Minister of Home Affairs An interior minister (sometimes called a minister of internal affairs or minister of home affairs) is a cabinet official position that is responsible for internal affairs, such as public security, civil registration and identification, emergency ...

. 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.

Financial consequences

There are several

marital property regime Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between ...

s which can apply to a marriage in South Africa. By default, if a couple does not sign an

antenuptial contract A prenuptial agreement, antenuptial agreement, or premarital agreement (commonly referred to as a prenup), is a written contract entered into by a couple prior to marriage or a civil union that enables them to select and control many of the leg ...

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. 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 Recorder of deeds or deeds registry is a government office tasked with maintaining public records and documents, especially records relating to real estate ownership that provide persons other than the owner of a property with real rights over ...

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. 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 In civil law jurisdictions, marital power ( la, potestas maritalis, nl, maritale macht, af, maritale mag) was a doctrine in terms of which a wife was legally an '' incapax'' under the usufructory tutorship (''tutela usufructuaria'') of her husb ...

, 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 In a no-fault divorce the dissolution of a marriage does not require a showing of wrongdoing by either party. Laws providing for no-fault divorce allow a family court to grant a divorce in response to a petition by either party of the marriage w ...

based on the "

irretrievable breakdown ''Irreconcilable Differences'' is a 1984 American comedy-drama film starring Ryan O'Neal, Shelley Long, and Drew Barrymore. The film was a minor box-office success, making over $12 million. For their performances, both Long and Barrymore were no ...

" 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 criminal A habitual offender, repeat offender, or career criminal is a person convicted of a crime who was previously convicted of crimes. Various state and jurisdictions may have laws targeting habitual offenders, and specifically providing for enhanced o ...

ity as factors which may prove irretrievable breakdown. A divorce may also be obtained on the grounds of incurable

mental illness A mental disorder, also referred to as a mental illness or psychiatric disorder, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. Such features may be persistent, relapsing and remitti ...

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 magistrates' court is a lower court where, in several jurisdictions, all criminal proceedings start. Also some civil matters may be dealt with here, such as family proceedings. Courts * Magistrates' court (England and Wales) * Magistrate's Cour ...

. 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 The extension of civil Same-sex marriage, marriage, Civil union, union, and domestic partnership rights to same-sex relationship, same-sex couples in various jurisdictions can raise legal issues upon Divorce, dissolution of these unions that are ...

is subject to the same law as divorce of opposite-sex couples. Divorce for marriages under

customary law A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudina ...

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. In 2011, the

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.

Marrying

Financial consequences

Divorce

Statistics

See also

References

Further reading