Types of Marriages

Types of Marriages

Because of the diversity of religions and cultures in South Africa, several different forms of marriage exist. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples. However this rule has expanded to recognised a variety of marriages including polygynous and even same-sex marriage. 


Civil Marriages

Civil marriages are governed by the Marriages Act 25 of 1961 and are about being married in the eyes of the law; the state grants you legal recognition through documentation (marriage certificate) of your partnership (marriage) to your life partner irrespective of religious or cultural affiliation.

This type of marriage can take place at court or be formalized as a wedding or marriage ceremony and may be officiated either by a religious official, government official or a state approved official.

Civil union marriage as a state institution is governed by the states laws and regulations.  In some countries any religious or customary ceremony must be held separately from, and usually before the required civil ceremony. While in many countries (including South Africa) both can be held together.


Religious Marriages

While a civil marriage is about being wed in the eyes of the law, a religious marriage is about being wed in the eyes of God (or whichever deity you believe in). It is viewed more as a spiritual bond in which a man and a woman come together to create a unified relationship according to their Gods laws and commandments - the couple will be obliged to practice the religious rites and laws of marriage as set out by their religious institution or state.

Some religious marriages like Muslim and Hindu marriages (which are not accompanied by a civil ceremony) are not recognised in South Africa and the parties are consequently considered as unmarried in the eyes of the law. This in turn means that there are certain legal rights that are not available to either party.

The reason for the non-recognition is that in general Muslim and Hindu Priests have not been designated as marriages officers and also due to their potential polygamous nature, which is seen as incompatible with the Marriage and Civil Union Acts.

In order to avoid this predicament, parties entering into Islamic and Hindu Marriages are encouraged to (after their religious ceremony) register their marriage at the Department of Home Affairs in terms of the Marriage Act or the Civil Union Act. They just need to keep in mind that should they do this the ordinary rules regarding in community of property and out of community of property will apply.


Civil Unions

Civil Unions (same-sex marriages) became legal in South Africa on 30 November 2006 when the Civil Union Bill was enacted after having been passed by the South African Parliament earlier that month - Making South Africa the 5th country to do this. This bill grants same-sex couples the same status and benefits - and the responsibilities - that marriage gives opposite-sex couples.

Marriage officers are appointed through organisations and because their governing body’s rules and regulations not all marriage officers can or have the authority to perform civil unions - only marriage officers qualified and equipped with a Civil Union Register can marry same sex couples.

Some of these rules & regulation include:

  • Organisation may see a same sex marriage in conflict with their beliefs.
  • Some churches do not allow certain marriage’s e.g. certain churches don’t marry people who have been divorced, or only marry church members (It may have nothing to do with being in a same sex union).
  • The marriage officers own person’s beliefs, ethics and standards. A marriage officer can decide if a couple understands or is mature enough, or medically fit enough to enter into a valid marriage and can also choose who he or she wishes to register.
  • Cultural or religious customs or traditions where not met or agreed upon.


Customary Marriages

A customary marriage is one where the spouses are married in terms of custom as opposed to the laws of a country. The Recognition of the Customary Marriages Act, 120 of 1998, came into operation on 15 November 2000, and gives full legal recognition to customary marriages in South Africa which are concluded in terms of the customs and traditions observed among the indigenous people of South Africa.

A customary marriage can only be concluded in accordance with customary law. Customary law is defined as  the customs and usages traditionally observed among the indigenous African peoples of South Africa and which forms part of the culture of those people

These marriages can be monogamous where the marriage stays between 1 man & 1 woman; or polygamous where the man may take on more than one wife (polygyny). The law currently does not recognise polyandry where one woman can take on more than one husband - this is because customary law is based on the different traditions practiced by different cultures and none of the cultures recognise it. Also unfortunately even tough Hindu and Muslim faiths include polygamy it is not allowed - they still need to be married according to the civil union act to have their marriages recognised as legal in South Africa.

Polygamous marriages are not allowed under the Marriage Act and the Civil Unions Act so you cannot enter into a customary marriage and civil marriage simultaneously. However, if a man and a woman between whom a customary marriage exists and neither of them is a spouse in another subsisting customary marriage with any other person they may enter in a civil union marriage.

 If the husband in an existing customary marriage wishing to marry a second wife he must apply to a competent court, the court will then considers the interests of all parties to the marriage and may add whatever conditions the court deems just for the polygamous marriage to be valid under customary law.


Common law marriage

If you are not married, but living (cohabiting) with your partner for a certain period of time - in either a same-sex or mixed-sex relationship - it is commonly seen as you being married under common law and you can then enjoy the same rights as a married couple. This is not true - there is no such thing as a Common-law Marriage in South Africa.

Therefore; no matter the amount of time that you live together as a couple, it does not translate into a “default marriage” and very few of the laws that protect married couples will protect you. So should the relationship end due to separation or death of one partner you will not be able to lay claim to an undocumented inheritance. There will also be no obligation of maintenance unless of course you can prove your partner as the biological parent.

The best way to approach a common law marriage will be to formally regulate your relationship with a cohabitation agreement, which is a legally binding document setting out how your assets are to be dealt with and any other pertinent matters should your relationship come to an end for whatever reason - this is a simple document that can easily be drawn up by any attorney. The effect of such an agreement is similar to that of a marriage in community of property, and carries many of the same benefits and disadvantages.