Love and marriage go together like a horse and carriage…

According to a recent BBC Worklife article, divorce rates are rapidly increasing around the world – whether you live in China, Sweden, or the United Kingdom. This is true of South Africa as well. Since the already slow cogs of justice ground to a halt for months due to the hard lockdown level 5, South African courts face a backlog in the divorce courts, the likes of which has not been seen before.

Limpopo’s Regional Court President Jakkie Wessels recently confirmed that there were 11 788 divorce matters outstanding in the province alone. This is almost half of the total number of divorces (just over 25,000) recorded for the whole of South Africa in 2018 – and relationship experts warn the pandemic-induced break-up curve may not have peaked yet.

How many people got married? Interestingly, this is harder to verify from an online search. Generally, it seems, Google’s algorithm has decided that divorce is more interesting. The best statistics I could find was from the 2011 Census:

  • 43,7% have never married
  • 36.7% are married
  • 20% are divorced

This does mean those who are married are in the minority!

Why speak of divorce when this is supposed to be an article on marriage?

Because how you start your relationship determines, quite often, how it will end. Unfortunately, StatsSA reports that more than four out of ten marriages do not last. Also, women are more likely to be disadvantaged in divorce procedures.

But let us start at the beginning…

In the South African melting pot, getting married can be complicated

So what does marriage look like in South Africa? First, you will have to identify what is meant by ‘marriage’.

At this time, South African law recognises three Acts related to marriage:

  • The Marriage Act of 1961 – one man and one woman
  • The Recognition of Customary Marriages Act of 1998 – this legislation caters for individuals in polygamous customary marriages
  • The Civil Union Act of 2006 – These may include religious or non-religious ceremonies. It establishes a civil partnership between two without considering their gender. While the initial intention was to cater to same-sex couples, most civil union marriages today are between opposite-sex couples.

The legal consequences of civil partnerships are identical to those of a marriage under the Marriage Act.

Hindu and Muslim marriages

Until recently, Hindu marriages and traditional religious Muslim marriages were not recognised as having the same legal status as civil marriages in terms of the Marriage Act 25 of 1961. This fact meant that many spouses (read women) were and still are discriminated against due to their traditional religious marriages. It precludes them, for example, from certain legal protections around inheritance.

During April 2014 over a 100 Imams (Muslim clerics) were officially appointed as marriage officers in terms of the Marriage Act. Imams had to complete a course and write an exam to become accredited as marriage officers. However, a Muslim marriage will only be valid where the marriage is solemnized by a marriage officer duly registered as such. Many still are not. Unfortunately, many women do not have much say over which Imam will be officiating their wedding.

It should also be noted that a marriage officer may not marry any person who is already a party in another (Muslim) marriage, even where that marriage is not registered as intended in the amendments as yet. It leaves second or third wives vulnerable.

Customary marriages

Since 1998, the law has recognised marriages, including polygemous weddings, conducted under African customary law. While a woman may only have one husband, men are allowed to have more than one wife. (I am not sure why a wife would want more than one husband – it seems even having one is enough of a challenge!)

How old do you need to be?

So yes – there still is a legal age difference depending on your gender. Boys older than 18 and girls older than 15 can get married. Interestingly, minors may not enter into a Civil Union, only a Civil Marriage.

Civil Unions

In 2006, South Africa became the fifth country in the world to allow marriages where the gender of the couple was irrelevant. This allowed same-sex couples to get married. This was done to bring the Marriage Acts in line with the Constitution.

Who can marry you?

Both Civil Marriages and Civil Partnerships must be solemnised by an authorised marriage officer. The marriage officer does not have to be of a recognised Church Denomination.

Community of Property: Are you in or are you out?

And this, dear reader, is why you are finding this blog post on a Financial Advisor’s website (if you like what we have to say and never want to miss a word, remember to subscribe to our newsletter omnibus! We promise we will only bug you once a month.)

There are financial consequences linked to your choice and it is concerning how often spouses (Unfortunately disproportionately women) come to me for advice and then do not even know how they were married.

Firstly, all Marriages are automatically within Community of Property, UNLESS the parties sign an antenuptial agreement beforehand before a public Notary. The Notary will register the document at the Deeds Office within 3 months.

  • In Community of Property (COP) – all assets of both parties merge into a single estate. Upon termination, death or divorce, each party owns half of the estate.

    COP suits traditional marriages where one partner becomes the stay at home parent who sacrifices their career to care for the offspring.
  • Antenuptial Marriages – These can take one of two forms:
    • With Accrual – In marriages contracted after 1984 with an antenuptial contract, the accrual system will apply unless the agreement expressly excludes it.Each brings their estate to the marriage, which is then ‘pegged’ and any growth that transpired after the wedding was completed, is shared.
    • With the exclusion of accrual – An antenuptial contract excludes profit or loss between the partners. Each spouse maintains a separate estate with separate assets and liabilities. The latter arrangement is better suited to scenarios where one or both parties are going to run their own businesses. If one business collapses, the family need not necessarily lose their home.

How far have we come?

It depends on where you stand. My parents married 1950, within Community of Property. My father had exclusive control over my mom (at least on paper!). She could not open a bank account, a store account or exercise any control over her finances. She was under the ‘protection of my dad.’ She (and other wives) finally gained full ‘adult’ status in 1983. I remember, as an 18-year-old male, telling my mother that I had more rights than she had.

So yes. In some ways. Is it enough? No. We are not all evenly yoked! Despite being promulgated more than two decades ago, not all legislation has been brought into line with the Bill of Rights. Justice is still not for everybody.

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