Brief Encounters: Types of Marriages in South Africa

South Africa recognises different types of marriages, each governed by specific legislation. Below is an overview of civil, customary, and civil union marriages, along with legal developments affecting Muslim marriages.

1. Civil Marriage

A civil marriage is regulated in terms of the Marriages Act 25 of 1961.

Requirements for a valid civil marriage:

• The marriage must be between a man and a woman.

• The marriage must be solemnised by a person legally appointed or authorised to act as a marriage officer.

• The parties must be 18 years or older.

• If the parties are under the age of 18, the consent of the parents or legal guardian is required; in some cases, the consent of the Minister of Home Affairs is required for the marriage to be valid.

• If the Minister of Home Affairs refuses to consent, the High Court must grant consent for the marriage to be valid.

2. Customary Marriage

A customary marriage is regulated in terms of the Recognition of Customary Marriages Act 120 of 1998.

A customary marriage is concluded in accordance with customary law, namely the customs and traditions which are observed amongst the indigenous African people of South Africa, which forms part of the culture of those people, including polygamous people.

Requirements for a valid customary marriage:

• The parties must be 18 years or older.

• The parties must consent to being married to each other in terms of customary law.

• The marriage must have been negotiated and entered into in terms of customary law.

• The customary marriage must be registered within 3 months after the marriage. The certificate of registration will serve as proof of marriage.

  
  

However, if the marriage is not registered, it does not necessarily mean that the marriage is not valid. Therefore, a customary marriage will still be valid even if it is not registered.

In the case of MM v MN, where the male partner wants to enter into a second customary marriage, the same requirements must be fulfilled for the marriage to be valid, but the consent of the first wife needs to be obtained before a second marriage can be concluded.

In Women's Legal Centre Trust v The President of the Republic of South Africa, the Constitutional Court declared the Marriage Act and the Divorce Act unconstitutional for failing to recognise Muslim marriages not registered as a civil marriage. The court further addressed the failure to provide for the redistribution of assets and welfare of minor children from a Muslim marriage.

Following this judgment, the Divorce Amendment Bill was signed into law by the President, amending the Divorce Act to recognise Muslim marriages and safeguarding the interests of Muslim women and children during divorce proceedings.

Therefore, Muslim marriages are legally recognized in South Africa for the aspects specified in the amendment.

The Marriage Amendment Bill, which shows the intention of the South African legislature to amend the marriage law to recognize all forms of marriage, including Muslim marriage, is not yet approved by the Cabinet. Once it has been approved and signed by the President, it becomes law.

3. Civil Union

A marriage can also be concluded in terms of the Civil Union Act 17 of 2006, which applies to same-sex couples as well as heterosexual couples. Such a union has the same legal consequences as a marriage under the Marriage Act.

Requirements for a valid union:

• The union must be between 2 people.

• It must be a voluntary union.

• The parties must be 18 years or older.

• The union must be solemnised and registered in terms of the Civil Union Act.

• Another requirement is that a person in a civil union cannot also enter into a marriage under the Marriage Act or into a customary marriage.

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