In South Africa, marriage exists in a number of different forms, as a result of the diversity of religions and cultures in the country. A man in South Africa may have more than one spouse but a South African woman may only have one spouse. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples. [1] Since 1998 the law has recognised marriages, including polygynous marriages, conducted under African customary law, [2] as well as religious laws such as Islamic law. In 2006 the South African constitutional court ruled in favour of recognizing same-sex marriage. [3] It is currently the only country in the world to recognise both polygamy and same-sex marriages, albeit not in conjunction.
South Africa outlawed marital rape in 1993. [4]
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. [8]
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. [9]
Spouses can marry under a different property regime by executing an antenuptial contract before a notary public; to be effective against third parties, the contract must also be registered in a deeds registry within three months from the date of execution. An antenuptial contract excludes community of property and community of profit or loss, so that each spouse maintains a separate estate with separate assets and liabilities. The contract can also make specific provision for the handling of property and its distribution after death or divorce. In marriages contracted since 1984 with an antenuptial contract, the accrual system will apply to the marriage unless it is specifically excluded by the contract. Under the accrual system, the spouses' property remains separate for the duration of the marriage, but at the time of death or divorce their estates are adjusted so that the difference in "accrual" between the two estates is divided equally. "Accrual" is the increase of the net value of the estate from the marriage's commencement to its dissolution. [9] However, the accrual system does not apply if one of the estates is insolvent at the time the marriage ends. In calculating the adjustment, the minimum value an estate of a party can have is zero; negative estate values are not taken into account.
The financial consequences of marriages under African customary law entered into before 2000 are governed by the applicable customary law. In those entered into after 2000, if the marriage is monogamous the same rules apply as for civil marriages. If the marriage involves a second or subsequent wife, the law requires the husband to apply to court to approve a written contract that will regulate the future matrimonial property system of his marriages.
The doctrine of the marital power, which gave the husband exclusive control over the estate in a marriage in community of property, and the power to administer the wife's estate in a marriage out of community of property, was abolished in 1984 for all future marriages, and in 1993 for all marriages.
South African law provides for no-fault divorce based on the "irretrievable breakdown" of the marital relationship. The courts may accept any relevant evidence of breakdown, but the law specifically mentions one year's separation, adultery, and habitual criminality as factors which may prove irretrievable breakdown. A divorce may also be obtained on the grounds of incurable mental illness for two years, or continuous unconsciousness for six months.
Divorce cases are heard in the High Courts or, since 2010, in the regional civil magistrates' courts. A court has the jurisdiction to hear a divorce if either of the spouses is legally domiciled within the geographical jurisdiction of the court, or if either spouse is "ordinarily resident" (i.e. normally lives in) the jurisdiction and has been ordinarily resident in South Africa for at least a year.
Divorce of same-sex couples is subject to the same law as divorce of opposite-sex couples. Divorce for marriages under customary law is also subject to the civil law, with certain modifications to account for the fact that customary marriages may be polygynous.
According to the 2011 census, of South Africans aged 20 or older, 43.7% had never been married, 36.7% were married at the time of the census, 11.0% were living together like married partners, 5.7% were widowed, 0.9% were separated, and 1.9% were divorced. [10]
In 2011, the Department of Home Affairs registered 167,264 marriages under the Marriage Act, 5,084 customary marriages under the Recognition of Customary Marriages Act, and 867 marriages or civil partnerships under the Civil Union Act. In the same year 20,980 divorces were reported. [11]
Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between them and their in-laws. It is nearly a cultural universal, but the definition of marriage varies between cultures and religions, and over time. Typically, it is an institution in which interpersonal relationships, usually sexual, are acknowledged or sanctioned. In some cultures, marriage is recommended or considered to be compulsory before pursuing any sexual activity. A marriage ceremony is called a wedding.
Polygyny is the most common and accepted form of polygamy around the world, entailing the marriage of a man with several women.
Common-law marriage, also known as non-ceremonial marriage, sui iuris marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a legal framework where a couple may be considered married without having formally registered their relation as a civil or religious marriage.
A prenuptial agreement, antenuptial agreement, or premarital agreement, is a written contract entered into by a couple prior to marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse's right to claim an elective share of the estate of the deceased spouse.
Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the end of the marriage. Matrimonial regimes are applied either by operation of law or by way of prenuptial agreement in civil-law countries, and depend on the lex domicilii of the spouses at the time of or immediately following the wedding..
Community property also called community of property is a marital property regime that originated in civil law jurisdictions but is now also found in some common law jurisdictions.. Community of property regimes can be found in countries around the world including Sweden, Germany, Italy, France, South Africa and parts of the United States. In civil law countries such as Spain, France and Germany, spouses can generally select one of several matrimonial regimes to divide property, with community property being one option, along with the separate property system and a participation system.
Same-sex marriage in South Africa has been legal since the Civil Union Act, 2006 came into force on 30 November 2006. The decision of the Constitutional Court in the case of Minister of Home Affairs v Fourie on 1 December 2005 extended the common-law definition of marriage to include same-sex spouses—as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation—and gave Parliament one year to rectify the inequality in the marriage statutes. On 14 November 2006, the National Assembly passed a law allowing same-sex couples to legally solemnise their union 229 to 41, which was subsequently approved by the National Council of Provinces on 28 November in a 36 to 11 vote, and the law came into effect two days later. South Africa was the fifth country in the world and the first in Africa to legalise same-sex marriage.
Conflict of marriage laws is the conflict of laws with respect to marriage in different jurisdictions. When marriage-related issues arise between couples with diverse backgrounds, questions as to which legal systems and norms should be applied to the relationship naturally follow with various potentially applicable systems frequently conflicting with one another.
Marriage law refers to the legal requirements that determine the validity of a marriage, and which vary considerably among countries. See also Marriage Act.
The type, functions, and characteristics of marriage vary from culture to culture, and can change over time. In general there are two types: civil marriage and religious marriage, and typically marriages employ a combination of both. Marriages between people of differing religions are called interfaith marriages, while marital conversion, a more controversial concept than interfaith marriage, refers to the religious conversion of one partner to the other's religion for sake of satisfying a religious requirement.
This article summarizes the same-sex marriage laws of states in the United States. Via the case Obergefell v. Hodges on June 26, 2015, the Supreme Court of the United States legalized same-sex marriage in a decision that applies nationwide, with the exception of American Samoa and sovereign tribal nations.
This article is a general overview of divorce laws around the world. Every nation in the world allows its residents to divorce under some conditions except the Philippines and the Vatican City, an ecclesiastical sovereign city-state, which has no procedure for divorce. In these two countries, laws only allow annulment of marriages.
Farid-Es-Sultaneh v. Commissioner, 160 F.2d 812 is a United States federal income tax case. It is notable for the following holding:
The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.
South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. It may be defined as "that subdivision of material private law which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: (i) husband and wife ; (ii) parents, guardians and children; and (iii) relatives related through blood and affinity."
"As far as family law is concerned, we in South Africa have it all. We have every kind of family; extended families, nuclear families, one-parent families, same-sex families, and in relation to each one of these there are controversy, difficulties and cases coming before the courts or due to come before the courts. This is the result of ancient history and recent history [...]. Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it's a paradise, for judges a purgatory."
Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another was an important case in South African customary law.
The Custom of Paris was one of France's regional custumals of civil law. It was the law of the land in Paris and the surrounding region in the 16th–18th centuries and was applied to French overseas colonies, including New France. First written in 1507 and revised in 1580 and 1605, the Custom of Paris was a compilation and systematization of Renaissance-era customary law. Divided into 16 sections, it contained 362 articles concerning family and inheritance, property, and debt recovery. It was the main source of law in New France from the earliest settlement, but other provincial customs were sometimes invoked in the early period.
Divorcein South African law refers to the termination of a marital union, the canceling of the legal duties and responsibilities of marriage and the dissolving of the bonds of matrimony between a married couple. Divorce is unlike ANNULMENT, which declares the marriage null and void. Divorce requires the sanction of a court in a legal process. The legal process of divorce may also involve issues of alimony, child custody, child support, distribution of property and division of debt.
The Recognition of Customary Marriages Act, 1998 is a South African statute in terms of which marriages performed under African customary law, including polygynous marriages, are recognised as legal marriages. It also reformed the law relating to the legal status of women in customary marriages, the financial consequences of a customary marriage and the dissolution of customary marriages, replacing the customary law with statutory provisions. The act was signed by President Nelson Mandela on 20 November 1998 but only came into force on 15 November 2000.
Intestate succession in South African law takes place whenever the deceased leaves property which has not been disposed of by valid testamentary instrument. In other words, the law of intestate succession applies only:
