The Present Day State of the Institution Called Marriage

This article discusses marriage, Customary Law, Domestic Partnerships and Islamic Marriages

Source – Langenhoven Attorneys, Verreniging

Reproduced from Gauteng Law Council Newsletter – August 2008

The marriage and the civil union

In Butterworth’s compendium Family Law Service (First Binder s.v. Definition and characteristics of marriage) a marriage is defined as follows:

Marriage is traditionally defined as a union between one man and one woman who mutually agrees to live together as spouses until the marriage is dissolved by the death of one of them or as otherwise provided by law.

A closer look at the text that follows on the definition creates the impression that there are more characteristics than definition, and that the law of contract, while amply represented by many rules regulating the agreement, does not completely embrace the union that forms the essence of the marriage.

It therefore comes as no surprise that the Marriage Act, 25 of 1961, does not attempt to define a marriage, or the union that results there from, but contents itself to define the appointment of those who may regard themselves as marriage officers, and how they should go about the business of solemnizing (or blessing) marriages.

In 2006 the Common Law regarding marriages as well as the Marriage came under the scrutiny of the Constitutional Court in the now well known matter of Minister of Home Affairs v Fourie 1 SA 524 (CC). It was found that the then existing state of affairs represented an unconstitutional discrimination between same sex couples who may desire to enter in to the marital state, and the Government was ordered to amend the Marriage Act. Interestingly enough, the only reference to the Common Law concept of a marriage in the act could be found in the prescribed question and answer session to be conducted by the marriage officer which reads: (S 30)
Do you, A.B. declare that as far as you know, there is no lawful impediment to your proposed marriage to C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?
The Constitutional Court proposed to add the words “or spouse” as a possibility at the end of the question.
The Government responded by promulgating the Civil Union Act 17 of 2006, and did not amend the Marriage Act, which still goes about its business of solemnizing (or blessing) the union between one man and one woman as set out above.

In S 1 the Civil Union Act defines a “civil union” as follows:
“Civil Union” means the voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this act, to the exclusion, while it lasts, of all others.

It is therefore a monogamous business.

It also defines a “civil union partner” as a spouse in a marriage, or as a partner in a civil partnership, as the case may be, which union is concluded in terms of the Civil Union Act.

Any person designated as a “marriage officer” in terms of the Marriage Act is also a marriage officer in terms of this act. The Minister may in terms of S 5 on application appoint further ministers of religion or persons attached to religious organizations or denominations as marriage officers.

A marriage officer must enquire from the partners appearing before him/her whether they want their civil union to be known as a marriage or as a civil partnership. After having ascertained the preference, he/she must then solemnize the union by asking the same question as is referred to above, except for the ending which now reads “……. your lawful spouse/civil partner” as the case may be.

The partners must then sign a prescribed document in the presence of two witnesses, attesting to their choice. The marriage officer must issue the partners with a civil union certificate, stating whether they have entered in to a marriage or a civil partnership, and remit the prescribed documents to the official in the public service with the delegated responsibility to be included in the population register.

The word “spouse” is not defined, but according to the dictionaries it refers to either a husband or a wife, and is derived from the Latin word spondere, to give, referring to the customary dowry. The use of the word “spouse” would therefore seem to indicate a marriage between members of the opposite sex, while members of the same sex should opt for a partnership. However, the object of the exercise was to enable same sex marriages and since the legal consequences contemplated by the Marriage Act apply to the civil union (S 13), this object seems to have been achieved by the introduction of the principle of the legalised civil partnership.

When introducing the act, the Minister said the following:

The civil partnership formula especially makes provision for a same-sex couple to decide whether to refer to their union as a civil partnership or a marriage. Civil partnerships will be solemnised by a marriage officer designated by the Minister of Home Affairs in terms of the Marriage Act.

The Minister then made the following somewhat confusing remark:

The Civil Union Bill also provides the legal recognition and legal consequences of domestic partnerships of both same and opposite sex who are not joined in any marriage or civil partnership.

The resulting position seems to be that opposite sex couples can marry in terms of the Marriage Act, despite it having been found unconstitutional, and both opposite and same sex couples can form a union in terms of the Civil Union Act, but must then choose whether to call it a marriage or a civil partnership.

The Customary Union

The Recognition of Customary Marriages Act 120 of 1998 came into operation on 15 November 2000. It contains the following definitions:

“Customary Law” means the customs and usages traditionally observed among the traditional indigenous people of South Africa, and which form part of the culture of those peoples.
“Customary Marriage” means a marriage concluded in accordance with Customary Law.

A marriage which is a valid marriage at Customary Law and existing at the commencement of the act is for all purposes recognized as a marriage, as is a marriage which is entered into after commencement of the act. If a person was involved in more that one customary marriage before the commencement of the act, all are regarded as valid marriages, but if a person becomes involved in a further customary marriage after commencement of the act, the marriage must comply with the act before being regarded as valid (S 2).

The requirements for a valid marriage entered in to after commencement of the act are:
The prospective spouses must:
• Both be above the age of 18 years;
• Both consent to be married to each other under Customary Law; and
• The marriage must be negotiated and entered in to or celebrated in accordance with Customary Law.
• The act requires the spouses to a customary marriage to register their marriage. If entered into before the commencement of the act, it must be registered within 12 months after the commencement date, and if entered in to after the commencement date, it must be registered within three months of the celebration.

The proprietary consequences of marriages predating the act, remain regulated by Customary Law, but the spouses may apply to Court to have the matrimonial property system changed (7(4)).

If the marriage is celebrated after the act came into operation, and it is a first marriage, it is a marriage in community of property, and chapter 111 and sections 18, 19, 20 and 24 of chapter 1V of the Matrimonial Property Act 88 of 1984 apply.

Community of property may be excluded by an ante nuptial contract which will then regulate the matrimonial property system of the marriage (S7).

Any husband who is engaged in a customary marriage, and wishes to engage in another customary marriage after commencement of the act, must make a contract in which all spouses are joined and in which the matrimonial property situation of all previous spouses is regulated and must approach the Court to have this contract sanctified. The court must terminate any existing property system, ensure equitable distribution of assets and generally take into account the interests of all family groups concerned. The Court may allow amendments to the contract, insert conditions, or disallow the contract.

If the contract is approved by the Court, the registrar of the Court must supply every interested party, including all registrars of deeds in the vicinity, with certified copies of the contract.

This seems to be ante nuptial business, and it will be interesting to know whether any notary has ever been asked to draw such a contract, to have it approved of by a Court and to register it.

A customary marriage may only be dissolved by a Court on the grounds of irretrievable breakdown.
A man and a woman between whom a customary marriage exists, and who are only involved in one such a marriage, are competent to contract a marriage with each other under the Marriage Act. After this no spouse may enter into any other form of marriage.


Domestic Partnerships

A Domestic Partnerships Bill (Draft) was gazette on 14 January 2008, but it has not progressed through any other stage of legislation. Except insofar as it may be based on contract, or defined in to the word “spouse” by law or the interpretation of laws, the domestic partnership is not recognised in South African Law.

Islamic Marriages

In 2002 the S A Law Commission proposed a draft Bill for an Islamic Marriages Act in South Africa, to make provision for the recognition and registration of Islamic marriages, to regulate and recognise the status of and capacity of spouses, to regulate the proprietary consequences and the dissolution thereof. The Bill has not yet progressed through any other stage of legislation. The celebration, dissolution and consequences of the Islamic marriage are at present regulated by Islamic law.

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