Provisions
All customary marriages which were valid under customary law when the act came into force, whether monogamous or polygamous, are recognised as marriages for all legal purposes. Marriages contracted after the act came into force are only recognised if they comply with the requirements imposed by the act. These requirements are that the spouses are 18 or older, that they both consent to the marriage, and that neither of them are already married under the Marriage Act or the Civil Union Act. The age requirement may be waived by the special written permission of the minister of home affairs or her delegate.
The spouses are obliged to register the marriage with the Department of Home Affairs within three months; for marriages which existed before the act came into force, there was a one-year period for registration. Both of these periods were repeatedly extended up to the end of 2010. However, a customary marriage is valid even if it is not registered, and there is no penalty for failure to register.
The act declares that a wife in a customary marriage has equal legal status and capacity as her husband, including the ability to buy, own and sell property and the ability to enter into contracts. Previously, under customary law a wife had been regarded as perpetually a minor under the control of her husband (see also marital power). All monogamous marriages contracted after the act came into force are in community of property, meaning that all assets and liabilities belong to both spouses equally, unless an antenuptial contract is drawn up. If a man wants to contract a second simultaneous marriage he must apply to a court to approve a contract regulating the financial relationships between him, his current wife or wives and the new wife. The act states that the financial status of marriages that existed before the act came into force continues to be regulated by customary law; however in the case of Gumede (born Shange) v President of the Republic of South Africa and Others the Constitutional Court found this unconstitutional and determined that such marriages, if monogamous, are to be treated as marriages in community of property.
The act applies the civil divorce law (the Divorce Act, 1979) to customary marriages, meaning that a customary marriage can only be dissolved by the High Court or a regional civil magistrate's court and only on the grounds of irretrievable breakdown of the marriage. The power of traditional leaders and other customary institutions to grant divorces is ended, but they may still mediate in spousal disputes before the legal divorce.
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 before 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.
In cultures where monogamy is mandated, bigamy is the act of entering into a marriage with one person while still legally married to another. A legal or de facto separation of the couple does not alter their marital status as married persons. In the case of a person in the process of divorcing their spouse, that person is taken to be legally married until such time as the divorce becomes final or absolute under the law of the relevant jurisdiction. Bigamy laws do not apply to couples in a de facto or cohabitation relationship, or that enter such relationships when one is legally married. If the prior marriage is for any reason void, the couple is not married, and hence each party is free to marry another without falling foul of the bigamy laws.
Same-sex marriage has been legal in South Africa 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 is available in England and Wales to both opposite-sex and same-sex couples and is legally recognised in the forms of both civil and religious marriage. Marriage laws have historically evolved separately from marriage laws in other jurisdictions in the United Kingdom. There is a distinction between religious marriages, conducted by an authorised religious celebrant and civil marriages conducted by a state registrar. The legal minimum age to enter into a marriage in England and Wales is eighteen years. Certain relatives are not allowed to marry. For foreign nationals, there are also residency conditions that have to be met before people can be married. Same-sex marriage was introduced under the Marriage Act in March 2014.
Lobolo or lobola in Zulu, Xhosa, Swazi, Silozi, Shona and northern and southern Ndebele, and mamalo in Tshivenda language, sometimes referred to as "bride wealth" or "bride price" is a property in livestock or kind, which a prospective husband, or head of his family, undertakes to give to the head of a prospective wife's family in gratitude of letting the husband marry their daughter.
Marriage law is 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 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.
In Israel, marriage can be performed only under the auspices of the religious community to which couples belong, and inter-faith marriages performed within the country are not legally recognized. However, marriages performed abroad or remotely from Israel must be registered by the government. Matrimonial law is based on the millet or confessional community system which had been employed in the Ottoman Empire, including what is now Israel, was not modified during the British Mandate of the region, and remains in force in the State of Israel.
Common-law marriage, also known as sui juris marriage, informal marriage, marriage by habit and repute, or marriage in fact is a form of irregular marriage that survives only in seven U.S. states and the District of Columbia along with some provisions of military law; plus two other states that recognize domestic common law marriage after the fact for limited purposes.
Polygamy is legal under certain circumstances in South Africa. All polygamous marriages entered into in accordance with the provisions of the Recognition of Customary Marriages Act are legal. The husband in an existing customary marriage wishing to marry a second wife must apply to a competent court for such a marriage to be legal. Hence former President Jacob Zuma currently has four legally-recognised wives. The court considers the interests of all parties to the marriage and may add whatever conditions the court deems just for the polygamous marriage to be valid under customary law. Polygamous marriages are not allowed under the Marriage Act and the Civil Unions Act.
Polygamy is the practice of having more than one spouse; while prohibited under Zimbabwean civil law, polygamous marriages may be performed under the country's customary law. Less than one-fifth of the country's population are engaged in polygamy.
South African customary law refers to a usually uncodified legal system developed and practised by the indigenous communities of South Africa. Customary law has been defined as
an established system of immemorial rules evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councilors, their sons and their sons' sons until forgotten, or until they became part of the immemorial rules.
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. Since 1998 the law has recognised marriages, including polygynous marriages, conducted under African customary law, as well as religious laws such as Islamic law. In 2006 the South African constitutional court ruled in favour of recognizing same-sex marriage. It is currently the only country in the world to recognise both polygamy and same-sex marriages, albeit not in conjunction.
The Marriage Act, 1961 is an act of the Parliament of South Africa governing the solemnisation and registration of marriages in South Africa. It does not deal with the dissolution of marriages, which is governed by the Divorce Act, 1979, or with matrimonial property regimes and the financial consequences of marriage, which are governed by the Matrimonial Property Act, 1984. Some issues relating to marriage remain governed by the Roman-Dutch common law because they have never been addressed by Parliament.
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."
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.
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:
