As our law currently stands, marriages in South Africa are regulated by a number of Acts – although there exists a number of gaps in our legislation which the Department of Home Affairs aims to address this year. For example, current legislation fails to regulate some religious marriages, such as Hindu and Muslim marriages, and in certain areas is not aligned in respect of divorce legislation and intestate succession. Many marrying couples fail to grasp the importance of their marriage contract nor the fundamental role it plays in determining their financial future. In this article, we explore the marriage options available to South Africans and how new legislation could potentially be aligned under one umbrella.
Marriages in this country are regulated through the Marriage Act, the Recognition of Customary Marriages, and the Civil Union Act which make provision for civil marriages, customary marriages, and civil unions respectively. Couples married in terms of a civil marriage, civil union or customary marriage can choose whether to marry in or out of community of property, with in community of property being the default matrimonial property regime for all three types of marriages.
(i) Civil marriages: A civil marriage in terms of the Marriage Act of 1961 can only be entered into between a man and a woman and is the most common form of marriage in South Africa. When entering into a civil marriage, in community of property is the default matrimonial property contract unless the couple chooses to enter into an ante-nuptial contract. In doing so, the couple can choose to be married with the accrual system, being the default option for out of community marriages, or to expressly exclude the accrual system in their ANC. As it currently stands, only monogamous couples of the opposite sex can be married in terms of this Act meaning that same-sex couples are notably precluded. If a heterosexual couple is married in terms of this Act, the wife is legally permitted to change her surname; whereas if a husband wishes to take his wife’s surname, he will need to apply to the Director-General.
(ii) Customary marriages: The Recognition of Customary Marriages Act of 1998 provides legal recognition for those married in terms of African customary law. In terms of this piece of legislation, legal recognition is provided for both monogamous and polygamous customary marriages provided that the marriage is celebrated according to the prevailing customary law of the community. Once married, the couple is required to register their marriage with the Department of Home Affairs within three months. In the case of polygamous marriages, the groom is required to apply to the High Court for an order that regulates the matrimonial property system of his various marriages in order to protect all the parties to the marriages.
(iii) Civil unions or partnerships: After the introduction of the Civil Union Act of 2006, South Africa became one of the first countries in the world to give legal protection and marriage benefits to couples in same-sex relationships. However, contrary to common belief, a civil union marriage is not limited to couples of the same sex and extends to couples of opposite sexes. What is important to note, however, is that civil union marriages enjoy the same rights, responsibilities and legal consequences as civil marriages, and that there is essentially no difference between a civil marriage and a civil union. As in the case of civil marriages, the marriage must be registered with the Department of Home Affairs keeping in mind that this Act permits either partner to the marriage to change his/her surname regardless of gender.
(iv) Religious marriages: This type of marriage is one entered into in terms of a religion, such as the Islamic and Hindu faith, although it is generally not recognised in our law. However, in certain circumstances, limited protection is granted in respect of spousal support and inheritance rights. A spouse in a religious marriage has the right to approach the Magistrate’s Court for maintenance from her deceased’s spouse estate. Further, where a spouse in a religious marriage dies without a Will, his surviving spouse may inherit in terms of the law of intestate succession.
Where a couple, whether same or opposite sex, chooses to live together without formalising their relationship under the Civil Union Act, their relationship is not regulated by law and this can have far-reaching legal and financial consequences. Our law convers no legal status on cohabiting couples and, as such, no duty of support exists between couples living together. This means that, if the relationship comes to an end, one partner will not be able to claim maintenance from the other partner even if they was financially dependent on them during the relationship. Note, however, the same does not apply to child maintenance as in terms of our law both parents have a legal duty to support their children regarding of their marital status. Notable disadvantages of this type of living arrangement are that the surviving partner has no legal claim for maintenance from the deceased’s partners estate and no right to inherit in terms of intestate succession. Further, a cohabiting partner cannot claim a share of the member partner’s pension interest should the relationship terminate as this right is reserved for those who are legally married and whose marriage is subsequently dissolved in terms of the Divorce Act.
That said, there have been a number of recent common law developments which aim to address these and other inequalities and which attempt to align the rights of those in life partnerships. In the recent matter of Bwanya, the court found that all types of families deserve legal protection – including those who choose to live as life partners – and that life partnerships are characterised by a reciprocal duty of support. The court ruled that the Act be amended so that the definition of surviving spouse includes those in a life partnership meaning that the surviving partner should be able to claim maintenance from the deceased partner’s estate if he has failed to do so. Further, the court ruled that the Intestate Succession Act be amended so that the surviving partner in such a relationship can inherit from the deceased partner’s estate if he/she died without a Will – although it is important to note that these legislative changes have yet to been made.
As is evident, there are currently inconsistencies and inequalities within the current regulations governing marriages in this country, and the aim of the updated Marriage Bill – which the Department of Home Affairs aims to submit to Cabinet this year – is to ensure that all South Africans, regardless of sexual orientation, religion or cultural beliefs, can conclude legal marriages and enjoy the same rights and obligations within their marriages.
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