A person can get married in terms of a civil marriage, customary marriage, civil union or religious marriage. A religious marriage is not recognised as a valid marriage, but the spouses in a religious marriage can be protected by law in certain instances.
What are the general requirements for a valid marriage?
- Both persons to the marriage must give consent to get married and must be older than 18 years of age.
- A person younger than 18 years of age, needs the permission of his/her parent/s or guardian/s to get married. No person younger than 18 years of age can enter into a civil union.
- The marriage must be lawful, for example:
- persons who are closely related (such as brother or sister, or parent and child) may not get married; or
- a person may not have more than one marriage at a time, except for customary marriages.
- Certain formalities must be adhered to, such as that the marriage must be concluded by a marriage officer and in the presence of two witnesses.
- A marriage must be registered at the Department of Home Affairs.
The difference between marriage in and out of community of property
- MARRIAGE IN COMMUNITY OF PROPERTY: there is one estate between a husband and a wife. Property and debts acquired prior to or during the marriage are shared equally in undivided shares (50%). Both spouses are jointly liable to creditors.
- MARRIAGE OUT OF COMMUNITY OF PROPERTY WITHOUT THE ACCRUAL SYSTEM: the spouses have their own estates which contain property and debts acquired prior to and during the marriage (“what is mine is mine and what is yours is yours”). Each spouse is separately liable to his/her creditors. Prior to the marriage, an ante nuptial contract must be entered into to indicate that the marriage will be out of community of property.
- MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM: this is identical to a “marriage out of community of property” but the accrual system will be applicable. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate once the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual. The accrual system does not automatically apply and must be included in an ante nuptial contract.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)