Marriage isn't just about romance and vows; it's a binding legal contract with important consequences. Understanding the legal requirements and implications before tying the knot in South Africa can help couples avoid unexpected surprises and protect their future.
From checking eligibility to choosing the right matrimonial property regime, here are five essential legal considerations couples must address before walking down the aisle.
1. Can you both legally get married?
Before setting the date, make sure you're both legally eligible to marry. Generally, you must both be at least 18 years old, but younger couples can marry with special consent. Both partners should also be mentally capable of understanding the significance and responsibilities of marriage – so getting married while severely intoxicated or experiencing mental health issues could later invalidate the marriage.
Additionally, South African law places specific restrictions on marriage. You can't legally marry if you're already in a civil marriage (although customary marriages may allow polygamy if compliant with traditional laws).
Marriage between close relatives, such as siblings or parents and children, is strictly prohibited. Above all, both parties must willingly enter into the marriage, fully grasping what they're agreeing to.
2. Choosing the right matrimonial property regime
One of the most critical decisions you'll make is selecting your matrimonial property regime. This determines how assets and debts will be managed during and after the marriage. South African law recognises two main options: marrying "in community of property," where everything is shared equally, or "out of community of property," either with or without the accrual system.
If you don't specify otherwise, you'll automatically be married in community of property. To marry out of community, you need to sign an antenuptial contract prior to your wedding, before a notary public, and register it with the Deeds Office. This step ensures your financial interests are protected based on your preferences.
3. Understanding the requirements for a valid marriage
To ensure your marriage is recognised, specific legal requirements outlined in the Marriage Act must be met. Besides both being at least 18 years old (or obtaining special consent), you'll need valid identification, such as an ID or passport. If one partner is a foreign national, additional documents, like a 'Letter of No Impediment', might be required.
Your ceremony must be officiated by an authorised marriage officer, such as a magistrate, religious leader, or a designated official from the Department of Home Affairs. Finally, you'll need at least two witnesses present to legally confirm the union.
4. Registering your marriage and verifying your marital status
After saying your vows, it's essential to officially register your marriage with the Department of Home Affairs. This registration provides you with a legal marriage certificate, a crucial document needed for various administrative tasks such as visa applications, buying property, applying for loans, or handling inheritance matters. It also officially recognises your marital status, helping avoid potential legal complications down the line.
5. Deciding on your marital home
The "marital home," or family home, is the primary residence you share as a married couple, regardless of whose name is on the title or lease. This home carries both emotional and legal significance, especially if the relationship ends due to divorce or death. Decisions around the marital home often impact divorce proceedings, child custody arrangements, and financial settlements.
Given its central importance in family law, it's wise to openly discuss your expectations regarding your marital home beforehand, ensuring clarity and mutual understanding between you and your partner.
Marriage is a significant legal and personal commitment, and careful planning can help prevent future disputes or unexpected hardships. Before tying the knot, it's highly advisable to seek legal advice to ensure your chosen matrimonial arrangement aligns with your expectations, offering protection and clarity for both partners.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
