Civil marriages

Source: http://www.paralegaladvice.org.za

Marriage is a contract between a man and a woman. They agree to live together as husband and wife. Like other contracts, a marriage contract has rights and duties for each partner.

South African law only recognises civil marriages fully. So customary marriages of Africans and marriages by Muslim or Hindu rites are not ‘legal’ marriages (see below), but in terms of the new Constitution they are now equal with Christian marriages in most cases.

A new Marriage Act is in the process of being finalised, which will allow for the legal recognition of various cultural marriage ceremonies.

For a civil marriage, there are many laws about who can marry and how they can marry. For example:

• The law says you can’t marry again until your first spouse (husband or wife) dies, or until the first marriage ends in divorce. If you marry while you are still married to someone else, you are guilty of the crime of bigamy.
• You also can’t marry or have sex with close relatives. If you do you are guilty of incest.
• Boys under 18 and girls under 15 can’t marry, unless they have permission from their parents and the Minister of the Home Affairs.
• Minors (people under 21) also need their parents’ permission.
• A marriage officer must conduct the civil marriage ceremony to make it legally valid.

Note that the 1997 Marriage Extension Act extended the South African Marriage Act to the whole ofSouth Africa. Previously the ‘homelands’ were covered by different laws.

The South African Law Commission is investigating the question of legally recognising and regulating all domestic partnerships, including established relationships between people of the same sex. These issues are in the process of being debated.

The Constitutional Court judgement has given legal recognition to same-sex relationships in the case of Satchwell v President of Republic of South Africa (2002) . In this case the applicant (who was a judge and a partner in a same-sex relationship) said that there were certain benefits available to the ‘spouses’ (wives or husbands) of judges in heterosexual relationships but not to partners of judges in same-sex relationships. She claimed that this was unfair discrimination on grounds of sexual orientation and marital status. She said benefits should be equally available to the spouses and partners of all judges. The Court agreed and said the benefits should be available to partners of judges in same-sex relationships.