Marriage in South Africa

Marriage in South Africa exists in a number of different forms, as a result of the diversity of religions and cultures in the country. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples. Since 1998 the law has recognised marriages, including polygynous marriages, conducted under African customary law, and in 2006 South Africa became the fifth country in the world to allow same-sex marriage. 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.

There are three different laws under which a marriage may be formed in South Africa:

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 are ex officio marriage officers, and civil servants (in practise usually officials of the Department of Home Affairs) are appointed as marriage officers by the Minister of Home Affairs. 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.

There are several marital property regimes which can apply to a marriage in South Africa. By default, if a couple does not sign an antenuptial contract 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.

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