Although most marriages begin as a romantic arrangement, a marriage, in actuality, is a legally binding contract between two individuals. This means that, like all other contracts, certain requirements must be met to render the marriage valid. These requirements are all dependant on the form of marriage you choose.

We distinguish between the following forms: Civil marriages, same-sex marriages, customary marriages, religious marriages and domestic partnerships, commonly known as cohabitation.

Unlike the other forms of marriages/relationships, civil marriages have always been recognised and fully protected by The Marriage Act. It was not until recently that customary and same sex marriages were afforded recognition on similar grounds. In South Africa we distinguish between three pieces of legislation which govern marriages:

1. The Marriage Act 25 of 1961

Governs civil marriages which can either be In Community of Property, Out of Community of Property or Out of Community of Property with the Accrual. The effect of being married in community of property is that the husband and wife share one joint estate which includes their individual debts incurred before marriage. Out of community of property refers to a marriage concluded where the parties sign an Ante Nuptial Contract (ANC) which set out that the estate of each party remains separate after marriage. There is also the option of getting married Out of Community of Property with the Accrual System applicable. The legal consequence that follows this type is that each party retain their own property but by agreement they share the value of their estate as acquired during the subsistence of the marriage. The Act prescribes the following requirements for the marriage to be valid:

• There must be consent between the parties;
• Both parties must be 18 years or older;
• If under the age of 18 years then special permission of the parents or guardians are required. Should such consent be refused, then application to the High Court can be made.

2. The Recognition of Customary Marriages Act 120 of 1998

Allowed for the recognition of both monogamous and polygamous customary marriages which primarily had to be concluded according to the customs and usages traditionally observed against the indigenous African people. Monogamous customary marriages are automatically in community of property unless the parties contract otherwise. The Act sets out three requirements which ought to be met in order for the marriage to be regarded as valid:

• The parties entering into the marriage must be 18 years of age and older;
• There must be consent to be married under customary law;
•  The marriage must be celebrated according to the customs and usages of that community.

3. The Civil Union Act 17 of 2006

Provides the same legal protection to marriages concluded between partners of the opposite sex, especially same-sex relationships as those married under the Marriage Act. The following requirements need to be met in order for the marriage to be legally valid:

• Both prospective spouses must be 18 years of age. This requirement cannot be done away with;
• The Act also offers protection to persons involved in a monogamous relationship to enter into a civil partnership with each other. This provision is regarded as being purely beneficial to parties who wish to have legal recognition over their relationship without having to get married;
• May only be a spouse or partner to one marriage/civil partnership;
• Person in civil union may not conclude a marriage under the Marriage Act.

Religious marriages

These types of marriages, entered into in terms of religious rights, has for many years been under development in order to provide parties with legal protection, but to no success.

Bailey Haynes Inc. – Attorneys Cape Town

Still having trouble deciding the form of your marriage or which property system to settle for; contact Bailey Haynes Inc. on 021 422 4963 for professional step by step assistance.