Legal Articles

Planning and concluding a marriage is one of the most exciting events in many people’s lives. The high prospects of eventually settling down together with the one close to the heart is a feeling like no other, a sense of fulfilment and completeness almost describes this feeling in the parties to the impending marriage.

However, it is this overwhelming feeling of excitement that equally requires the parties to tread carefully and know exactly what they are getting themselves into and what is required to secure that. This article briefly discusses the various essential and ancillary issues surrounding the conclusion of marriage, in order for it to be valid and effective.

Marriage Act of South Africa

Depending on the particular circumstance’s parties may enter into a Civil Marriage which is governed by the Marriage Act 25 of 1961, Civil Union governed by the Civil Union Act 17 of 2006 or Customary marriage as regulated by the Recognition of Customary Marriages Act 120 of 1998.

Civil Marriages Act

Civil marriages are usually conducted by religious, government or state sanctioned officials. The Civil Union legislation was promulgated primarily to provide legality to same-sex unions, although the legal consequences of civil marriages are applicable to civil unions.

Customary Marriages Act

Customary marriages on the other hand, are those concluded under indigenous African rites and customs. Previously, marriages concluded under Muslim rites were not recognised but this has changed since the decision in the consolidated cases of President of the RSA and Another v Women’s Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (612/19) [2020] ZASCA 177.

Requirements for a Valid Marriage in South Africa

The above consolidated case was groundbreaking in that marriages concluded under Muslim rites had been denied legal status in cases decided before the new democratic dispensation which are Ismail v Ismail 1983 (1) SA 1006 (A), Kader v Kader 1972 (3) SA 203 (RA), Bronn v Fritz Bronn’s Executors and Others and Seedat’s Executors v The Master (Natal) 1917 AD 302.

The most essential elements of concluding a valid marriage, involve much of the ceremony itself as well as the registration of the marriage. Below are the essential requirements:

1. It must be concluded by an authorised official;
2. Civil marriage and civil union must be conducted in a church, private house, public office or building used for religious purposes, with open doors;
3. There must be at least two witnesses of majority age;
4. Registering the marriage will require a divorce decree should any of the parties be a divorcee, or a death certificate in the event of a party being widowed;
5. Valid identification and legal status of foreign marriage parties must be produced to show that they are not married in their home country and are legally in South Africa;

At the conclusion of the marriage, the parties, witnesses and the marriage officer signs the Marriage Register which then is used to register the marriage with the Department of Home Affairs.

The Unabridged marriage certificate is then issued as proof of the existence of the marriage. Unabridged marriage certificates are usually required for use outside the country where it was issued as they are more detailed in what they certify.

Van Deventer & Van Deventer Incorporated - Marriage Attorneys in Johannesburg and Cape Town

For expert legal advice or assistance with the conclusion of your marriage in South Africa, please don’t hesitate to contact our marriage attorneys in Cape Town and Johannesburg.

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