MARRIAGE LAW IN SOUTH AFRICA
SOLEMNISATION AND REGISTRATION OF CIVIL MARRIAGES
The solemnisation and registration of civil marriages are governed by the Marriage Act, 1961 (Act No. 25 of 1961), hereinafter referred to as "the Act", and the Regulations issued in terms of the Act. Presently civil marriages are solemnised at offices of the Department of Home Affairs and at churches with authorised marriage officers.
PLACE OF MARRIAGE, WITNESSES
In terms of the Act a marriage must be conducted in a church or another building used for religious services, or in a public office or private house, with open doors, and in the presence of the parties to the marriage and at least two witnesses. However, in the case of serious illness or injuries, the marriage may take place in the hospital or facility concerned.
SOLEMNISATION
On the day of the marriage, the following documentation must be presented to the marriage officer by the couple:
- Their identity documents. If they never had identity documents, an affidavit BI-31 may be furnished in lieu of identity documents and, if their births are registered, also their birth certificates. Foreigners must present their passports.
- If minors, the written consent as prescribed
- If divorced, the final decree of divorce. If for any sound reason a person is unable to produce a decree of divorce or if a person was divorced in a foreign country and cannot obtain a decree of divorce an affidavit by the person concerned is required to the effect that he/she is legally divorced, and stating the name of the court which granted the divorce and the date on which it was granted.
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If widowed, the deceased spouse's death certificate. If a death certificate is not available the person concerned is required to submit an affidavit confirming the death of the deceased spouse and stating the name of the deceased and the date of death.
MARRIAGE REGISTER
After solemnisation of the marriage, both parties to the marriage, the two witnesses and the marriage officer must sign the marriage register, upon which the marriage officer must issue the parties with a marriage certificate (BI-27) free of charge.
REGISTRATION AND CERTIFICATES
After the marriage, the marriage officer must submit the marriage register to the nearest Home Affairs office for recording of the marriage particulars in the National Population Register (NPR). All subsequent issues of marriage certificates are subject to completion of an application BI-130 and payment of a prescribed fee of R7-00. A full (unabridged) certificate may also be applied for. Application form BI-130 must be completed and a prescribed fee of R40-00 is payable.
Applications for marriage certificates should be lodged at your nearest Home Affairs office if applying from within South Africa and at the nearest South African Mission or Consulate if applying from abroad (applications from abroad may take longer depending on the different diplomatic bag dispatch periods).
PROHIBITED MARRIAGES
Certain categories of persons may not marry, namely:
A man may not marry any person mentioned below
Mother
Daughter
Father's mother
Mother's mother
Son's daughter
Daughter's daughter
Sister
Wife's mother
Wife's daughter
Father's wife
Son's wife
Father's father's wife
Mother's father's wife
Wife's father's mother
Wife's mother's mother
Wife's son's daughter
Wife's daughter's daughter
Son's son's wife
Daughter's son's wife
Father's sister
Mother's sister
Brother's daughter
Brother's daughter's daughter
Sister's daughter
Sister's daughter's daughter
Sister's son's daughter
A woman may not marry any person mentioned below
Father
Son
Father's father
Mother's father
Son's son
Daughter's son
Brother
Husband's father
Husband's son
Mother's husband
Daughter's husband
Father's mother's husband
Mother's mother's husband
Husband's father's father
Husband's mother's father
Husband's son's son
Husband's daughter's son
Son's daughter's husband
Daughter's daughter's husband
Father's brother
Mother's brother
Brother's son
Brother's son's son
Sister's son
Sister's son's son
Sister's daughter's son
Further the following also cannot marry
- Persons of the same sex.
- Minors, unless the prescribed consent to the marriage has been given.
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Persons already married. Bigamy is a punishable offence in South Africa. Such marriages are also null and void in our law.
CONSENT TO MARRIAGE OF A MINOR
For purposes of the Marriage Act, 1961 (Act No. 25 of 1961) a minor is a person under 21 years who has not been married before. The following requirements apply:
- Where both parents are alive, and neither of the parents has sole guardianship of the minor, both parents must consent, in writing on form BI-32, to the marriage.
- If the minor is a child born out of wedlock, only the mother's written consent (BI-32) is required.
- If one parent has been granted sole guardianship of the minor, only that parent's written consent (BI-32) is required.
- If the minor is in the care of a legal guardian, only the guardian's written consent (BI-32) is necessary.
- If a parent whose consent is legally required cannot be found to grant consent, or is legally incompetent to do so, application to a commissioner of child welfare may be made for consent to the marriage (Section 25 of Act 25 of 1961).
- Should the minor's parents, and/or a commissioner of child welfare refuse to grant consent, the minor may apply to a Judge of the High Court for consent. (Section 25(4) of Act 25 of 1961). The Judge will not grant consent unless there is sufficient evidence that the marriage is in the interest of the child and that consent has been unreasonably refused.
- Boys under 18 and girls under 15, in addition to the consent of the parents or guardian, as the case may be, also require the consent of the Minister of Home Affairs (Section 26 of Act 25 of 1961). In terms of section 26(2) the Minister may, upon application, also condone a marriage which required his or her consent and was contracted without such consent.
- A marriage contracted without the legally required consent of the parents or guardian is voidable, in other words valid until declared null and void by the High Court. Section 24A of Act 25 of 1961 stipulates that the parents or guardian may, before the minor turns 21 and within six weeks of the date on which the marriage first came to their knowledge, apply to the High Court for dissolution of the marriage. The minor may apply before he or she turns 21, or within three months after turning 21.
Source: Ministry of Home Affairs South Africa
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