Legal Articles

Due to various political and socio-economic reasons in the past two decades, emigration to South Africa from countries in the region and the continent has surged immensely. This has naturally led to immigration laws, regulations and policies by the government of South Africa to be on a continuous path of development and modification to suit the altering patterns in immigration.

Are Foreign Marriages Recognised in South Africa?

On 26 November 2020 Eyewitness News reported that according to Stats SA, there are at least 3.9 million foreign nationals in South Africa, while the UN population division put the figure at 4.2 million. It has become widespread to see marriages between South Africans and foreign nationals in South Africa and even abroad, being concluded.

The RSA Department of Home Affairs moved, in response, to publish structural procedures and requirements for the valid conclusion of marriages between South Africans and foreign nationals.

These processes and requirements are of legal effect and obligation, without which it may lead to nullification of the marriage and denial of legal validity status. It is imperative therefore that parties to a marriage where a foreign national is involved must take heed and adhere to these.

Should the parties be intending to conclude a marriage outside South Africa, the processes and requirements of that particular country must be followed consequently. 

1. Status

First and foremost, the parties must prove their marital status. This is especially important in marriage systems where polygamy is not permissible. Should a party have undergone divorce, such divorce decree must be produced to prove that such party is not party to an existing marriage. In South Africa this can be checked at the Department of Home Affairs (DHA) which is responsible for registering and keeping record of marriages. Besides MARRIED, DHA also records statuses of individuals as SINGLE, DIVORCED, WIDOW, WIDOWER and DECEASED.

2. Letter of No Impediment (to Marry)

When a foreign national intends to enter into a marriage with a local citizen, a letter that proves that the foreign national is not party to an existing marriage in their home country or any other where they hold citizenship is required. This letter may be termed with a different name in other countries e.g Declaration of Single Status, Certificate of No Impediment.

3. Marriage

The marriage itself will then be concluded according to the normal marriage requirements of that particular country e.g Marriage Act 25 of 1961, Civil Union Act of 2006 or the Recognition of Customary Marriages Act of 1998, if in South Africa. Should the marriage be abroad, then the laws of that particular country will apply. The marriage will then be registered accordingly.

4. Registration

The marriage will need to be registered in that particular jurisdiction to complete the legal validation process. This therefore means that the status of the parties in that particular country will be amended to reflect Married. Documents can then be provided to the local DHA or the South African mission abroad so that the status can also be amended to reflect the new status. Other issues such as the wife’s change of surnames to that of the husband, double barrel surname or retaining one’s surname, are also dealt at this stage.

5. Marriage Certificate

The Unabridged Marriage Certificate is then issued upon registration of the marriage to prove the existence of the marriage. South African missions abroad may also issue this certificate upon proof, documentation and request. It is important to note that an Unabridged marriage certificate is required for use in countries other than where it was issued, and thus couples of different nationalities and those who intend to travel abroad may find it in best interest to request this type over the Abridged marriage certificate which has less details.

Van Deventer & Van Deventer Incorporated – Marriage Attorneys and Notaries Johannesburg and Cape Town

Many of the documents mentioned above require to be apostilled to be eligible for use abroad, and this is a process we are ready to assist with as well. Lacking such apostille authentification may render the documents of no use after so much money has been used to plan for the marriage. Feel free to contact us for expert legal assistance.

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