3 types of marriages in South Africa catered by South African law

January 23, 2024
Family Law|General
Getting married

Under South African law, there are three types of marriages recognised by the legal system: civil marriages, civil unions, and customary marriages.

1.  Civil Marriage:
A civil marriage is a legally recognised union between one man and one woman, to the exclusion of all others. It is governed by the Marriage Act in SouthAfrica. By default, a civil marriage establishes a matrimonial property regime of in community of property between the spouses unless they enter into a valid antenuptial contract.

In terms of the current civil marriage legislation, spouses of the same sex cannot enter into a civil marriage with one another, however, they can enter into a civil union.

2.  Civil Union:
The Civil Union Act in South Africa allows for both same-sex and opposite-sex marriages to be legally recognised.

A civil union grants the same legal rights and responsibilities as a civil marriage, providing equal benefits and protections regardless of the partners' gender or sexual orientation.

For spouses who wish to get married, but avoid any of religious tenants or prescripts associated with a civil marriage, this may be an appealing option.

The consequences of a civil marriage, and a civil union are, however the same: if one is to be married without anantenuptial contract, spouses are deemed t be married to one another in community of property. The conclusion of a valid antenuptial contract prior to conclusion of the marriage, which establishes an out of community of property regime (with or without accrual), is the manner in which spouses can contract out of the default regime.

Unless a valid antenuptial contract is concluded, the parties to a civil union are automatically married in community of property. 

3.  Customary Marriage:
Customary marriages are recognised under the Recognition of Customary MarriagesAct in South Africa. These marriages are celebrated in accordance with African customary traditions and can be monogamous or polygamous in nature. Sometimes these marriages are referred to as “traditional marriages”.  

By default, customary marriages are in community of property, but parties can change their matrimonial regime through an antenuptial contract, just as they can do in a civil marriage or civil union.

What is fundamental to note in a customary marriage, is that if the requirements to conclude a valid customary marriage are met, and unlike in civil marriages or unions, registration of a customary marriage alone does not serve to validate it.

Parties to a customary marriage must satisfy the three requirements which are defined in the Act being:

  1.  That the are over the age of 18 when the marriage is concluded;
  2.  That they both consent to the conclusion of the marriage;
  3.  That the marriage is negotiated and entered into or celebrated in accordance with customary law.

In South Africa, different cultures have different requirements for a marriage to be validly concluded.

This means that it is absolutely critical for spouses, before their marriages are negotiated, and before lobola (or any similar aspect of the marriage) is negotiated or before payments commence, that the parties consult with an attorney to assist them to make a decision about whether they want to be married in or out of community of property, and, should they wish to be married out of community of property that they conclude a valid antenuptial contract before their negotiations and/or celebrations begin.

Another feature of customary marriages, is that customary marriages can be polygamous in nature. Whilst civil marriages and customary marriages are by their nature monogamous in nature, customary marriages allow for a man to marry more than one wife. In the event that a second marriage is to be entered into, the parties to the marriage must seek legal advice, so as to ensure that all parties to the polygamous marriage are protected, and that their rights are secured

To ensure you have accurate and up-to-date information about legal marriages in South Africa, it is recommended to consult reliable legal resources, government websites, or seek advice from legal professionals specialising in South African Family Law. These sources can provide the most current information and guidance tailored to your specific situation.

The consequences of all of these marriages is that the parties to the marriage (if monogamous) are in community ofproperty unless a valid antenuptial contract is concluded.

Attorney Claire Thomson, Head of Witz Inc’sFamily Law Department, chatted to 702’s Gushwell Brooks on Tuesday 8 October about the three different types of marriage in South African Law. Listen to the full podcast here. To find out more about whether you have entered or intend to enter into a valid marriage, and whether you want to change your matrimonial regime from in, to out of community of property, consult a specialist at Witz Inc, today.