Age - A female must be at least 16 years old to be legally allowed to be married, and a male at least 18 years old. However, a 16 and 17 year old female requires the consent of at least one parent or legal guardian. A female younger than 16 years and a male younger than 18 years require the consent of their parents or legal guardians as well as the consent of the Minister of Home Affairs. At 18 years, people in South Africa are considered to be adults and may legally marry without anyone’s consent. Anyone may raise an objection to an intended marriage and the Marriage Officer may only perform the marriage if he/she is satisfied that there is no lawful impediment to it.
Marital status – Check your marital status to ensure that you are not reflecting as “married” at Home Affairs. If you are “married” according to the records at Home Affairs, then you will not be able to register another marriage. The Marriage Officer may only perform the marriage if he/she is satisfied that there is no lawful impediment to it.
Marriage Officer – In terms of the Marriage Act, only an authorized Marriage Officer can conduct a civil marriage. These would be, inter alia, a Magistrate, Special Justice of the Peace, an officer in the diplomatic or consular service of South Africa who has been designated as a Marriage Officer by the Minister of Home Affairs, a person holding a responsible position in any religious denomination or organisation who has been designated to perform marriages by the Minister of Home Affairs according to Christian, Jewish or Muslim rites, or the rites of any Indian religion. The authority may be limited to marriages within a specified area or for a specific period or for a particular group of people.
Documents – The marriage officer will require your original IDs and a copy thereof. If a South African is marrying a foreigner, then the IDs, both Passports and a Declaration as prescribed are required. There must be at least two witnesses to any marriage and they must also present their original IDs or Passports (if foreigners). If you have been married previously, the Divorce Order or Death Certificate as the case may be, is required. The spouses, the two witnesses and the Marriage Officer must sign the Marriage Register immediately after the solemnisation of the marriage and the Marriage Officer must furnish a handwritten Marriage Certificate to the spouses. The Marriage Officer must submit the Marriage Register to the Department of Home Affairs where the marriage details will be recorded. Both customary marriages and civil marriages can be registered at Home Affairs. The definition of a customary marriage is one that is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”.
Legal Consequences – Marriages in South Africa are automatically In Community of Property. This means that from your date of marriage, you and your spouse will share all of each other’s assets and liabilities equally. Consider signing an Antenuptial Contract either with or without the accrual system as part of your estate planning and a form of securing assets for yourselves and for existing and future children. THE CONTRACT MUST BE SIGNED BEFORE YOU GET MARRIED.
Estate Planning – It is also important to have a Will. If you already have a Will, forgetting to change it may lead to your spouse not inheriting anything from you or it may lead to costly Court battles between your heirs. This will also apply to policies where you may have nominated beneficiaries. It is important to figure out how to legally ensure that when you die, your assets end up where you want them to. This is especially important if you have children from previous relationships.
Property – Whether you intend to buy or rent a property, it is a good idea to discuss the financial implications prior to the marriage as part of your estate planning. You don’t have to wait to be married to buy a property. You will be described as “unmarried” and once you’re married, an Application can be lodged at the Deeds Office to note the change. However, this is not necessary as your matrimonial property system will not be affected. You may also want to consider registering a Trust and buying the property in the name of the Trust.
For further information or assistance with Antenuptial Contracts, Wills, Trusts and Conveyancing, please contact Myers Attorneys on 011 346 2422 or reception@myersattorneys.co.za