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MARRIAGE LAW - FAQ's             Back to home page

 

If you are engaged to be married or plan to do so in the future, or are even married already, you will need to know what the legal consequences are, and what the different ‘property regime’ options are that you can enter into. The choice you make can have serious consequences later on, whether due to divorce, insolvency etc. Getting married is one of the biggest decisions you can make and be sure to consult with an attorney if you are unsure or require assistance – it may end up to be one of the best investments you ever make!  

  1. My boyfriend wants us to get engaged – if I say ‘yes’, what are the legal consequences?
  2. What happens if I get engaged but later change my mind – What are the consequences?
  3. I am a minor and want to get engaged – who’s consent do I need?
  4. Should I seek legal advice before marriage?
  5. Where can we get married and what documentation is required?
  6. What are the different property regimes that we could adopt when getting married?
  7. What are the benefits and disadvantages of the different property regimes?
  8. What are the legal consequences of a marriage in community of property?
  9. What are the legal consequences of a marriage out of community of property with application of the accrual system?
  10. What are the legal consequences of a marriage out of community of property without the application of the accrual system?
  11. May I change from being married in community of property to one excluding such community?
  12. Who can prepare our ante nuptial contract and what does it cost?
  13. What is required after we sign the ante nuptial contract?
  14. What is the legal consequence of a civil marriage?
  15. What are the legal requirements for a customary marriage to be recognized as a valid marriage?
  16. What is the legal status of Muslim marriages in South Africa?
  17. What is the legal status of (Nikah) Muslim marriage in South Africa?

 

1. My boyfriend wants us to get engaged – if I say ‘yes’, what are the legal consequences?

 

An engagement agreement between two parties is a contract and as such is binding and has legal implications.

There are no prescribed formalities to such an agreement and it can be made in writing or viva voce (orally).

The parties concerned have to agree to an engagement between each other. By saying ‘yes’ you must give consent that you thereby agree to get engaged to that specific person.

The intention of both the parties must correspond before the agreement to get engaged can have any legal implication.

Failure to agree to the nature of the contract (error in negotia) or to the identities of the parties (error in persona) to such a contract will render the engagement contract viod ab initio (from the start). These two elements are considered to be material to the validity of such a contract .There will be no consensus and thus no engagement contract at all.

Material misrepresentation by any of the parties renders the engagement agreement voidable.

Whether such a misrepresentation was done by an action (active misrepresentation) or omission (failure to correct a misrepresentation made) or done intentionally or innocently, the aggrieved party will have a choice whether to cancel such an agreement or not.

Other factors such as duress or undue influence will also make the engagement agreement voidable.

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2. What happens if I get engaged but later change my mind – what are the legal consequences?

 

An engagement is in essence a promise between two parties to marry each other within a reasonable time.

The word engagement itself encompasses a promise to reserve yourself totally for the person that you became engaged with. A high level of loyalty and faithfulness is thus required between the two parties.

In the event that either of the parties breaches this promise of loyalty and faithfulness, the innocent party is entitled to withdraw from the engagement. The innocent party is also entitled to sue for damages.

The promise to marry each other also has legal consequences. It will be a breach of promise if a party, after an engagement, marries a third party instead.

In the event that either of the parties breaches this promise to marry the other party, the innocent party is entitled to sue for damages.

The parties also promise to marry each other within a reasonable time. The parties may change the set date of marriage by mutual agreement.

This promise will be breached where a party:

·         Continually refuses to set the date of marriage within a reasonable time, or

·         Unjustly refuse to marry on the date set.

In the event that either of the parties breaches this promise to marry the other party within a reasonable time, the innocent party is entitled to sue for damages.

Failure to keep your promise due to vis major (reasons beyond your control) will not constitute any breach.

The parties may also cancel the engagement by mutual consent.

The innocent party to a breach of promise may also keep the engagement ring and other gifts received from the party that breached his or her promise.

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3. I am a minor and want to get engaged – who’s consent do I need?     

 

 An engagement must be legal to have consequence. The parties must be able to also later enter into a valid marriage.

None of the two parties may be below the age of puberty and they may not be related within a prohibited degree etc.

In terms of Section 17 of the Children Act 38 of 2005 a child obtains major status at the age of 18.

Minors, to get engaged, need permission from:

·     Both parents, if still alive - ratification (permission in after the fact) is also permissible, or

·     The surviving parent where the other parent is deceased, or

·     His or her legal guardian where both parents are deceased, or

·     His or her sole guardian, if a minor was born out of wedlock.

Emancipated minors must also obtain parental consent.

Girls and boys under a certain age must also obtain permission from the Minister of Home Affairs.

The engagement of a minor will terminate with immediate effect and the remedy to claim for breach is excluded, should parental consent be withdrawn.

Although parental consent is required for the engagement of a minor, such engagement can not be contracted by means of the parents’ consent alone - the consent of such a minor is also required.

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4. Should I seek legal advice before marriage?     

 

Yes it could only be to your advantage to consider doing so – reason being that your particular circumstances might warrant careful consideration when choosing between the different properties regimes that can be adopted when getting married. These choices are specifically designed to provide for the different needs of matrimonial parties.

Making the right choice for your particular needs may require the advice of a trained professional.

Your particular circumstances may also warrant consideration whether you should adopt the surname of your spouse to be, or keep your maiden name i.e. due to your specific business or social requirements in your particular circumstances.

The opinion of a specialist in the matrimonial field may become handy even when you consider yourself to be knowledgable regarding your legal rights and in regard to your understanding of marriage and its consequences.

One should bear in mind that you are about to enter into a legal contract that may last your whole life - it may be wise to get a second opinion to ensure that you do it right!

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5. Where can we get married and what documentation is required?     

 

A marriage must be conducted in a church or other building used for religious service or in any public office or private house with open doors in the presence of the parties to the marriage, at least two witnesses and a marriage officer.

Marriage officers must be authorised in terms of the Marriages Act 25 of 1961 to be able to perform legal marriages.

The Civil Union Act, Act 17 of 2006 provides for application to be authorised to perform such same sex unions and also prohibits the solemnising of such unions without authority. Presently civil unions are being solemnised at churches and at the offices of the Department of Home affairs by authorised marriage officers.

Marriages may also be performed by a magistrate or other state official duly authorised to perform such a duty.

The marriage officer will require the following documentation from the parties:

·     Proof of identity,

·     Written consent, if minors,

·     Final decree of divorce, if previously married, or

·    Death certificate of spouse, where applicable regarding a previous marriage. 

Abovementioned documentation is to be supplied on the date of the marriage.

If a decree of divorce is not available to a party previously divorced outside our borders, a statement confirming such and stipulating the details in regard to the court granting such a divorce and the date thereof is to be supplied.

Similarly, where the required death certificate is unavailable a statement under oath is to be handed confirming the date, personal details and death of his or her previous spouse.

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6. What are the different property regimes that we could adopt when getting married?     

 

Parties to a marriage may elect either to get married:

·      In community of property ,

·      Out of community of property with application of the accrual system, or

·      Out of community of property without accrual.

An ante nuptial contract is required for any of the last 2 mentioned regimes.

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7. What are the benefits and disadvantages of the different property regimes?

 

Marriage in community of property:

Advantages:

·  Regime rest on old time values of partnership and harmony in the marriage,

·  Promotes legal and economic equality of the spouses.

Disadvantages:

·   Parties are exposed to financial risk – insolvency of one party effect both.

·   Equality in decision making powers regarding the joint estate may cause conflict in the marriage.

·    Death of one spouse will result in the administration of the joint estate and this may burden the surviving spouse financially.      

Marriage out of community of property with accrual:

Advantages:

·   Parties are protected from the creditors of one another – estates are separately administered and parties not liable for each others’ debts.

·   Parties share in the profits of the marriage at termination of the marriage – accrual system applies.

Disadvantages:

·         A value of partnership only applies at termination of the marriage – parties do not have general decision making powers regarding each others’ estates during the marriage.

Marriage out of community of property without accrual:

Advantages:

·    It provides for the complete separation of the estates of the parties to a marriage and a party will thus not be liable for the debts of his or her spouse.

·    Parties do not have to share the profits made during the substance of the marriage at the termination thereof.

 Disadvantages:

·    Courts have no discretion to adjust their estates on the basis of equity or fairness at dissolution of the marriage.

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8. What are the legal consequences of a marriage in community of property?

 

The parties will be deemed to have exercised this choice by default should they not enter into a contract stating otherwise prior to their marriage.

The parties will share in the combined property, assets and liabilities as in existence at time of marriage and or acquired at any time thereafter. This joint estate will be administered by them equally and owned equally in undivided shares.

Donations and inheritances expressly excluded from the joint estate by the testator will accrue to the separate estate of the party in whose favour it was made. This exclusive ownership will only be valid between the parties and will still be attachable by the creditors of the joint estate.

Section 15 of the Matrimonial Property Act 88 of 1984 restricts the individual ability of spouses to dispose of the assets of the joint estate. Onerous formal and informal consent provisions are required for such disposal.

Written consent is required from the other spouse to:

·     Sell or mortgage immovable property or burden such with servitude.

·    Enter into a contract regarding above or regarding any other real right vesting in such immovable property forming part of the joint estate.

·    Sell, cede or pledge i.e. stock, shares, mortgage bonds or similar assets or any investments of the other spouse that forms part of the joint estate.

·    Sell or pledge valuables that forms part of joint estate and mainly held as investment i.e. jewellery.  

·    Withdraw money held in the name of the other spouse.

.Enter as consumer into a credit agreement as provided for in the National Credit Act of 2005.

·    Enter as purchaser into a contract as defined in the Alienation of Land Act of 1981.

·    Bind him or herself as surety.

Informal consent from the other spouse is required for various actions also regarding assets belonging to the joint estate i.e. to sell household effects, to receive money or an inheritance due to the other spouse or income derived from the separate property of the other spouse etc.

Consent is unnecessary in some instances where the spouse acts in the ordinary course of his or her profession.

At termination of the marriage (divorce or death of the other spouse), the joint estate will be divided equally.

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9. What are the legal consequences of a marriage out of community of property with application of the accrual system?

 

This type of matrimonial regime is achieved by means of a contractual agreement, entered into by both spouses prior to their marriage.

This regime provides for the protection of the parties against the creditors of the other spouse but at the same time also provides for the ethic of sharing by means of its termination provisions.

The parties will not share in each other’s profits and or losses existing at time of marriage and or at any time during the substance thereof. Their estates will be administered by them separately and owned separately. The parties will only share what they acquired during such a marriage and only at the termination thereof.

At termination of the marriage the spouses will share in the accrual of the estate of his or her spouse.  This means that the increase of wealth achieved during the marriage will be shared or, by means of an example – the eggs of the hen and not the fowl itself.

The spouse whose estate has the smaller accrual will share half of the difference between such an amount and the amount of the greater accrual of the other spouse.

If you enter the marriage with a net worth of R 5 000 and its value increases to R 20 000, then the accrual of your estate will be R 15 000. If your spouse on the other hand enters the marriage with a net worth of R 20 000 and its value increases to R 65 000, his estate will have accrued R 45 000. You will have a claim against his or her estate for half the difference of the net accrual. The net accrual is calculated by subtracting the lesser accrual (R 15 000) from the larger accrual (R 45 000) i.e. R 45 000 – R 15 000 = R 30 000. Your claim will be half this amount i.e. R 15 000. You will then leave the marriage with R20 000 (value of your estate) + R 15 000 (your claim) = R 35 000. Your spouse will leave the marriage with R 65 000 (value of his estate) – R 15 000 (your claim) = R 50 000.

It is clear from this example that this regime provides for equal sharing of the profits at termination of the marriage.

Various assets are excluded in determining such an accrual i.e. amounts received for damages, certain donations between spouses and inheritances or assets acquired by virtue thereof not specifically excluded by means of their ante nuptial contract and also assets expressly excluded in an ante nuptial contract or acquired by means of former possession thereof.     

The accrual system is applicable to all marriages concluded out of community of property - unless specifically excluded by an ante nuptial contract.

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10. What are the legal consequences of a marriage out of community of property without the application of the accrual system?

 

This type of matrimonial regime is achieved by means of specifically excluding the integration of the accrual system in the contractual agreement, entered into by both spouses prior to their marriage.

It provides for the complete separation of the estates of the parties to a marriage.

The parties will not share in each other’s profits and or losses existing at time of marriage and or at any time during or after the substance thereof. Their estates will be administered by them separately and owned separately. The parties will also not share what they acquired during such a marriage at the termination thereof.

Parties to such a regime will not be liable for the debts of his or her spouse and the courts have also no discretion to adjust their estates on the basis of equity or fairness at dissolution of the marriage.

This regime is a popular choice where both spouses enter the marriage with assets and where both earn an income or in the event of a second or third marriage where there are children from a previous marriage involved.

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11. May I change from being married in community of property to one excluding such community?

 

Section 21(1) of the Matrimonial Property Act 88 of 1984.. allows the parties of a marriage to amend their marital regime from community of property to an ante nuptial contract.

.Such an application must be done at the High court and, if granted, the parties are allowed to register the new ante nuptial contract with the deeds office - In Ex parte Kros en’n Ander 1986 (1) SA 642 (NC) it was ordered that a variation from a marriage in community of property to one excluding such community shall have retrospective effect.

.New creditors will not be able to rely on the community of property but existing creditors would still have an action against both parties under the previous community of property system. In Ex Parte Coertzen ET UXOR 1986 (2) SA 108 (O) the creditors were prejudiced by omitted facts brought by an application in terms of Section 21

The courts must be convinced of three elements before granting such an application:

  • Sound reasons exist for the proposed change
  • Sufficient notice of the proposed change has been given to all the creditors of the spouses.
  • No other person will be prejudiced by the proposed change.

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12. Who can prepare our ante nuptial contract and what does it cost?

 

Your Ante Nuptial Contract can be prepared by your attorney and is lodged by a Notary Public (an attorney with the additional qualification of a Notary Public) at the Deeds Office.

The current rate can range anything between R700 and R1500 depending i.e. who you ask to perform such a service, the complexity of the task etc.

This may exclude some cost disbursements that your lawyer makes on your behalf.

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13. What is required after we sign the ante nuptial contract?

 

Your contract must be notarised by a Notary Public in order for it to be valid. This must be done before you get married.

The Notary will, once notarised, lodge it at the Deeds Office for registration purposes.

Such registration is done after marriage.

The contract will have 2 copies. One of these copies will be returned to you with the Deeds Office’s stamps on it, confirming that it was registered.

The other copy will be kept by the Notary.

In case you lose your copy you can apply at such Notary to forward his copy to you.

If the Notary fails to lodge the contract with the Deeds Office, you have a right of action against the Notary. The contract will then only be valid between the parties, but not against creditors.

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14. What is the legal consequence of a civil marriage? 

 

It must be noted that the Civil Union Act 17 of 2006 does not repeal the Marriage Act of 1961 or the Recognition of Customary Marriages Act 120 of 1998.

In terms of Section 13 of the Civil Union Act the legal consequence of a marriage in terms of this Act is the same as that of a marriage in terms of any other Act.

It thus follows that the legal consequence of such a marriage will be the same as a marriage in terms of the Marriage Act or, where applicable, the Recognition of Customary Marriages Act and that the requirements for such a marriage will also be the same except where explicitly stated otherwise.

Same sex parties to a civil union may choose to have it registered as a marriage or as a civil partnership upon which a certificate will be issued and such particulars be entered into the population register.

Any person 18 years or older may enter into such a civil union.

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15. What are the legal requirements for a customary marriage to be recognised as a valid marriage?     

 

Marriages entered into prior to implementation of the Act (15 November 2000) only need to be valid at customary law and registered within 12 months of the date of such a marriage.

If such a marriage is entered into after above mentioned date, it must:

  • Be negotiated, entered into and celebrated according to customary law.
  • Entered into at an age of 18 or above.
  • Have the consent of both parties to the marriage.
  • Have parental consent, if a minor is a party thereto.
  • Not be entered into by a party during the substance of his or her civil marriage.
  • Not be entered into by the husband of a current customary marriage without an existing court order regulating the future matrimonial property regimes of his marriages.
  • Be registered within 3 months after such a marriage in the presence of both the parties and at least one witness for each party and or a representative of each of the families. In the case of a minor the parents must also attend the registration.

In terms of the Recognition of Customary Marriages Act 120 of 1998 both parties have equal rights, also common law rights (Section 6) and the divorce court in terms of this Act can also make a custody order regarding any children of such a marriage (Section 8).

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16. What is the legal status of Muslim marriages in South Africa?

 

Prior to April 2014, spouses in a Muslim marriage under South African law were ordinarily denied inheritance and other rights. Women especially were denied spousal support and a fair distribution of property at the dissolution of a Muslim marriage.

In April 2014 more than 100 imams graduated as marriage officers, and are required to comply with the legal requirements of the South African Marriages Act of 1961. Marriages performed by them will now have automatic state recognition, and from the onset of a marriage, Muslim spouses will be protected under South African law.

Current legislation allows all couples to notarise an antenuptial contract to regulate the consequences of their marriage-the same mechanism also affords Muslim couples the opportunity to notarise an Islamic marriage contract. Imams are compelled to inform betrothed couples on the need for a notarised contract that accords with South Africa’s constitutional provisions.

 

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17. What is the legal status of (Nikah) Muslim marriage in South Africa?

 

The following information was provided by attorney Abdul Latif Buckus. You can read more here.

The legal status of (Nikah) Muslim marriages in South Africa is amongst the most frequently queried legal issues, which unfortunately still attracts the most divergent responses.

A brief overview.

Prior to the advent of democracy, (Nikah) Muslim marriages, together with Hindu and other Traditional marriage, were not recognized as having the same legal status as civil marriages in terms of the Marriage Act 25 of 1961. Numerous reasons were finished for non-recognition, and no constructive engagement regarding the issue was entertained. An example of the then status quo, is the 1983 ruling in Ismail vs. Ismail 1983 (1) SA1006 (A). The appellant sought the proprietary consequences flowing from the termination of a marriage solemnised according to Islamic rites (Nikah), the court refused to grant rights to polygymous unions on the grounds of public policy saying that “the union was contrary to the accepted norms that are morally binding on our society”.

The birth of our Constitution brought about acceptance, understanding and respect for every culture and religion. The Bill of Rights, considered the cornerstone of democracy, under Section 15, in Chapter 2, states that freedom of religion “does not prevent laws recognising marriages concluded under any tradition, or system of religious, personal or family law, or system of personal and family law under any tradition or religion,” provided that they are consistent with the Constitution. Among the first decisions reflecting the new constitutional values was the case of Amod v Multilateral Motor Vehicle Accidents Fund 1999(4) SA1319 (SCA1). The plaintiff brought an action against the insurer of a driver who had negligently killed her husband. She and her husband had been married according to Muslim rites in a de facto monogamous marriage, which had not been registered in terms of the Marriage Act 25 of 1961. The Supreme Court of Appeal found that since the marriage had been a de facto monogamous marriage and undertaken according to the customs of a major religion through a very public ceremony, the appellant’s marriage, in the spirit of plurality, equality, and freedom of the new Constitution, could not continue to be found to be offensive to the bonos mores of society.

During the late 90’s as democracy gained momentum, a progressive move toward formal recognition of these marriages began.

The Recognition of Customary Marriages Act

The Recognition of Customary Marriages Act, was enacted in the last quarter of 2000.

Many Muslim individuals and couples incorrectly believed that this legislation would result in the recognition of (Nikah) Muslim marriages.

The customary marriages act affords recognition to a customary marriage concluded in terms of customary law. The act defines customary law as, “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”. The definition clearly does not include or apply to marriages concluded by (Nikah) Muslim rights.

The customary marriages act thus does not afford recognition to (NIKAH) Muslim marriages.

Build up to the Muslim Marriage’s Bill

A Project Committee of the South African Law Reform Commission was established to investigate Islamic Marriages and matters related thereto.

This investigation ultimately led to drafting of the Muslim Marriages Bill.

Again many a Muslim mistakenly believed that Muslim marriages had attained recognition, after the deadline for public comment on the Muslim Marriages Bill had passed at the end of May, 2011.

The Muslim marriages bill, can only evolve into an ACT, or LAW, once it is enacted by parliament and allocated a commencement date.

Since the Muslim marriages bill has not been enacted and allocated a commencement date, it does not at present, amend the status of (Nikah) Muslim marriages in South Africa.

Delay in Enactment and Finalisation of the Muslim Marriage’s Bill

During the period that comment on the Muslim marriage’s bill was received, it became clear the two camps were emerging with divergent views and opinions regarding the recognition and regulation of Muslim marriages in South Africa.

The one school of thought motivate the view that the bill is unconstitutional and unislamic, in that it allows for state interference and regulation of sacred (Sharia) Islamic law. This group is also adamant that a non-Muslim jurist cannot preside over and rule on (sharia) Islamic law disputes.

Conversely the so called “liberal camp”, motivate the view that some form of regulation is better than none. They argue that progression and development of legal precedent around regulation of Muslim marriage, will be expedited if South African courts are allowed to decide on these matters and develop the law on a case-by-case basis.

This deadlock, coupled with further delays by all involved leaves the bill in somewhat of a void. There is presently no certainty or indication of when and how common ground will be attained.

Efforts by the Women’s Legal Centre Trust in relation to enactment of legislation to regulate and recognise (Nikah) Muslim marriages.

The Women’s Legal Centre Trust, in Cape Town, has always been at the forefront in assisting women affected by the consequences of non-recognition of Muslim marriages.

At the beginning of 2009 The Women’s Legal Centre Trust made an application directly to the Constitutional Court, requesting the court to compel the President and Parliament to pass legislation recognizing (Nikah) Muslim Marriages and regulating the consequences of such marriages within eighteen (18) months.

The constitutional court first addressed the question of jurisdiction, i.e. whether the court could be approached directly in this matter, as a court of first instance.

The Constitutional Court ultimately found that this application should follow the litigious hierarchy and be referred to the High Court, as court of first instance.

The Women’s Legal Centre Trust is due to launch this application in the Western Cape High Court, and we eagerly await the outcome.

Is it wise to hold your breath in anticipation of the Muslim marriages bill being enacted?

Considering all the difficulties and uncertainty around the bill as well as divergent opinions, it would be best to consider registration of your marriage in terms of the marriage act (25) of 1961

South African legislation is also by default not of retrospective application, and unless specified, an act will not apply to marriages before the commencement date.

Registration of (Imaam’s / Ulama) Muslim Clerics as Marriage Officers In April 2014

In 2014, the South African Department of Home Affairs launched a project to train (IMAAM / ULAMA) Muslim clerics to be designated marriage officers.

Over 100 (IMAAM’S /ULAMA) Muslim clerics, from around the country, graduated as marriage officers at the end of April 2014, allowing them to officiate and register Muslim unions.

Articles around this designation, have caused the most confusion with misleading titles such as

“As from 30 April 2014 Muslim marriages in South Africa are officially recognised.” and

“Muslim Marriage legal as a result of the Imams being designated as Marriage Officers in terms of the Marriages Act (25) of 1961.”

The factual situation is that not every (IMAAM/ALIM) Muslim cleric is a marriage officer.

In order to be designated a marriage officer a (IMAAM/ALIM) Muslim cleric must successfully complete a mandatory training course and examination.

Upon completion the (IMAAM/ALIM) Muslim cleric must be designated a marriage officer, as required in Section 4 of the Marriages act (25) of 1961.

This (IMAAM/ALIM) Muslim cleric is thus not a marriage office by virtue of his Islamic knowledge, training, or affiliation, but as a result of having successfully completed the requisite training and examination, in terms of the Marriages act (25) of 1961.

The role of the (IMAAM/ ALIM) Muslim cleric, as marriage officer would then be to solemnise the marriage in terms of the Marriage Act of 1961 after the (Nikah) Islamic marriage ceremony. The marriage officer must thereafter register the marriage formally with the Department of Home Affairs.

This registration is not a substitute for the (Nikah) Islamic marriage ceremony, nor does it have any bearing on its validity.

The designation of certain (IMAAM / ULAMA) Muslim clerics as marriage offices, does not afford recognition to (Nikah) Muslim marriage, but merely facilitates ease of registration, via (IMAAM/ ALIM) Muslim cleric, designated as marriage officer.

The proprietary consequences of such registered marriages will also be in terms of South African law and not (Sharia) Islamic law.

Does South Africa recognise (Nikah) Muslim marriage?

The short and concise answer is, NO.

However, by registering a marriage in terms of the marriages act 25 of 1961, spouses can obtain recognition and regulate the proprietary consequences of their marriage.

What are the potential dangers of not registering a marriage according to South African law?

If a spouse passes away and the marriage was not registered, the estate will be dealt with as that of an unmarried person, to the detriment of the surviving spouse.

Without a registered marriage, one may experience difficulty registering offspring under the father’s surname. In such an instance, birth certificates would be issued for a child on the mother’s surname.

Visa applications to visit certain countries, specify that marriage certificates should accompany applications.

Should the parties separate, enforcement of maintenance obligations, custody and access, arising from an Islamic marriage, could prove problematic.

What should a Muslim couple that contemplate (Nikah) Muslim marriage do?

Any couple that intend to marry by (Nikah) Islamic ceremony, should first consult an attorney to discuss the matrimonial property systems in South Africa and consider which will best suit their needs. An attorney must draft the necessary documentation before the marriage is registered in terms of the marriages act 25 of 1961. It is imperative that necessary documentation and contracts are finalised and attested to before registration in terms of the marriages act 25 of 1961.

What about spouses that are already married by (Nikah) Muslim ceremony?

A couple married by (Nikah) Islamic ceremony that have not registered the marriage in terms of the marriages act 25 of 1961, should likewise contact an attorney to discuss the matrimonial property systems in South Africa and consider which will best suit their needs. A marriage that is not registered in terms of the marriages act 25 of 1961, can be registered at any stage after the (Nikah) Islamic ceremony, irrespective of when the (Nikah) Islamic ceremony was performed.

What if a Muslim couple’s marriage has been registered in terms of the Marriages Act 25 of 1961, without an antenuptial contract?

South African law does make provision for registration of post nuptial contracts subject to certain requirements and court application. A Muslim couple that wants to change their matrimonial proprietary system must contact as attorney.

 

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