Marriage is a significant milestone, and while planning the wedding is exciting, ensuring that all legal aspects are in place is just as important. In South Africa, marriage laws are regulated under the Marriage Act (Act 25 of 1961), the Recognition of Customary Marriages Act (Act 120 of 1998), and the Civil Union Act (Act 17 of 2006). This guide will take you through the essential steps, required documents, costs, legal considerations, and key professionals involved in making your union legally binding.
1. Understanding Marriage Types in South Africa
South African law recognizes three main types of marriages:
- Civil Marriages: Governed by the Marriage Act and performed by a marriage officer in a government office, church, or approved venue.
- Customary Marriages: Recognized under the Recognition of Customary Marriages Act, these follow traditional customs and must be registered with Home Affairs.
- Civil Unions: Governed by the Civil Union Act, allowing for same-sex and opposite-sex couples to be legally united.
Each type has specific legal requirements, so it’s important to choose the one that aligns with your needs.
2. Step-by-Step Guide to Obtaining a Marriage License
Step 1: Meet the Legal Requirements
Before applying for a marriage license, ensure that both partners:
- Are 18 years or older (persons aged 16-17 need parental or guardian consent).
- Are not currently married under civil law.
- Are mentally capable of understanding the marriage contract.
- Are not closely related (prohibited relationships include direct family members).
Step 2: Gather Required Documents
When applying for a marriage license at the Department of Home Affairs (DHA) or through a registered marriage officer, you will need:
- Identity Documents (ID cards or passports) for both partners.
- Completed BI-31 Form (Declaration for the Purpose of Marriage, Civil Union, or Customary Marriage).
- Divorce decree (if previously married and divorced).
- Death certificate (if widowed).
- Parental consent affidavit (if under 18).
Step 3: Apply for the Marriage License
- Visit a local DHA office or an authorized marriage officer.
- Submit the necessary documents.
- If marrying in a church or private venue, ensure the officiating person is a registered marriage officer.
Step 4: Conducting the Marriage Ceremony
The marriage must take place in a public setting (church, home, or office) and must be officiated by a registered marriage officer with at least two witnesses present. Customary marriages must be concluded in accordance with cultural traditions.
Step 5: Registering the Marriage
After the ceremony, the marriage officer submits the signed marriage register to the DHA within three days. You will receive an abridged marriage certificate immediately. A full (unabridged) marriage certificate can be requested for international use.
3. Costs Involved
The cost of registering a marriage in South Africa varies:
Customary marriage registration: Free (if done within three months of the ceremony)
Marriage registration at Home Affairs: Free
Unabridged marriage certificate: +/- R75
Civil marriage officiation by a private officiant: R500 – R5000 (varies by service provider)
4. Marriage Contracts and Legal Considerations
In South Africa, marriages automatically default to “in community of property,” meaning all assets and debts are shared. If you want financial independence, you must sign an antenuptial contract (ANC) before marriage.
Types of Marital Contracts
- In Community of Property
- Assets and debts are shared equally.
- Risks include joint liability for debts.
- Out of Community of Property Without Accrual
- Each spouse maintains their own assets and debts.
- There is no financial sharing, even in divorce.
- Out of Community of Property With Accrual
- Each spouse maintains their own assets acquired before marriage.
- Assets gained during the marriage are shared equally upon divorce.
Drafting an Antenuptial Contract (ANC)
To draft an ANC, you must:
- Consult a notary public (a specialized lawyer).
- Sign the contract before the marriage takes place.
- Register the contract at the Deeds Office within three months of signing.
Costs for an ANC range from R2,500 to R5,000, depending on legal fees.
5. Role of Lawyers and Legal Experts
Marriage officers ensure legal compliance during the ceremony.
Notaries draft and notarize antenuptial contracts.
Family lawyers advise on marriage laws and divorce settlements.
6. Additional Considerations
- If either partner is a foreign national, additional documentation (e.g., a Letter of No Impediment) may be required.
- Islamic and Hindu marriages are not automatically recognized but can be registered under South African law.
- A will should be updated after marriage to reflect changes in assets and beneficiaries.
Navigating the legal maze of marriage in South Africa requires preparation and knowledge. Ensuring that all documents, contracts, and registrations are handled correctly will give you peace of mind as you embark on this new journey. Whether opting for a civil, customary, or civil union marriage, understanding the process helps make your wedding day legally sound and stress-free.
