Marriage is a sacred union between two people who are in a personal relationship. Marriage takes many forms such as religious, cultural and civil.  Often these types of marriages (religious and cultural) are not always recognised through the eyes of the law.  In South Africa, civil and customary marriages, therefore, are the most recognised and protected form of marriage.

Types of Marriages

Under South African law, three types of marriages are legally recognised, civil marriages, customary marriages and civil unions.

Civil Marriages

In terms of the Marriage Act, civil marriages are marriages that can only be entered into between a man and a woman. The marriage will automatically be in community of property, unless an antenuptial contract is entered into indicating that the marriage will be out of community of property, with or without the accrual system.

Customary Marriages

According to the Recognition of Customary Marriages Act, a customary marriage is one that is negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa. The marriage will automatically be in community of property, unless an antenuptial contract is entered into indicating that the marriage will be out of community of property, with or without the accrual system

Civil Unions

Means the voluntary union of two persons who are both 18 years of age or older. Any person regardless of gender, sex and religious belief.

Formalities for a Marriage to be Regarded as Valid

In our law, certain formalities and requirements need to be met for a marriage to be seen as valid. 

In terms of the Marriage Act, the formalities to conclude a valid civil marriage in South Africa are:

• Both parties must give consent to be married,
• The parties must be 18 (eighteen) years or older. 
• The marriage must be lawful
• Submit the required documentation on the day of the wedding to the person officiating the wedding. The person officiating the wedding needs:
  • Identification documents of each person getting married,
  • A final decree of divorce must be furnished (if necessary), and
  • Death certificate of the deceased spouse (only necessary if one of the parties is a widow or widower).

According to the Recognition of Customary Marriages Act, the formalities to conclude a valid customary marriage in South Africa are:

• Both parties to the marriage must be above the age of eighteen years.
• Both parties must consent to be married under customary law.
• The marriage must be negotiated, celebrated and entered into in accordance with customary law.
• Lobola must be fixed although full payment is not a necessary requirement for the validity of the customary marriage, however, if it is paid, it proves that the marriage was negotiated in accordance to custom.

A customary marriage must be registered at the Department of Home Affairs within three (3) months of concluding it. The Department of Home Affairs will issue a marriage certificate.

The formalities to conclude a valid civil union in South Africa are:

• Both persons must be 18 years or older to enter into a Civil Union.
• Both persons may not be already married in terms of any other Act.
• A person may only be a spouse or partner in one marriage or civil partnership, as the case may be, at any given time.
• A person in a civil union may not conclude a marriage under the Marriage Act or the Customary Marriages Act.
• A person who is married under the Marriage Act or the Customary Marriages Act may not register a civil union.

Although these formalities must be complied with, there are further requirements to be met. One of these requirements is marriage officers, and in South Africa, only marriage officers in terms of the Marriage Act perform marriages may do so.  In addition to a marriage officer, the marriage must be conducted in the presence of at least two witnesses.  These witnesses must be present at or in a church (or building used for religious services), and in a public office or private house with open doors.

Marriage Officers

In terms of the Marriage  and Civil Union Act, the following persons may conduct civil marriages: 

• Every magistrate, special justice of the peace and commissioner, in the territory or other area in respect of which, and for as long as he or she holds office. 
• Any other officers or employees in the public service or the diplomatic or consular service of South Africa, whom the Minister of Home Affairs or any officer in the public service authorised to do so, have designated as marriage officers by virtue of their office.  A marriage officer of this class may have a general authority to perform marriages, or an authority limited to a particular group or class of persons or country or region. 
• Any minister of religion or any person holding a responsible position in any religious denomination or organisation, who has been designated to perform marriages by the Minister of Home Affairs or an officer in the public service authorised by him/her according to Christian, Jewish or Muslim rites, or the rites of any Indian religion.  A pastor’s authority may be limited to the solemnisation of marriages within a specified area or for a specific period. 

Registration of the Wedding

The couple, the two witnesses and the marriage officer must sign the marriage register immediately after the solemnisation of the marriage.  Then the marriage officer must issue the parties with a handwritten marriage certificate free of charge.  The marriage officer must then submit the marriage register to the nearest office of the Department of Home Affairs, where the marriage details will be recorded in the National Population Register. Non-fulfilment of these requirements does not affect the validity of the marriage and registration of the marriage can be affected postnuptial. A duly signed marriage certificate serves as prima facie proof of the existence of the marriage. In the absence of a marriage certificate, the existence of the marriage may still be proved by other evidence.

Conclusion

If even one of the above formalities and requirements are not met, the marriage can be contested/disputed based on non-compliance with the prescribed formalities.  This is why when marrying, it is essential to have all documents in place and to comply with all the formalities.

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What happens when a spouse discloses to the other that they have committed a crime? Does the spouse have an obligation in terms of the law to say something? Can that spouse be forced by the court of law to testify? Does the law offer protection to the spouses?

What is marital privilege?

It is the protection offered to spouses for communication that was privately disclosed during the course of their marriage. Either spouse may invoke the privilege and this can prevent the one spouse from testifying against the other about their private marital communications in a civil or criminal matter. 

In terms of the Criminal Procedure Act 51 of 1977 (CPA), every person not expressly excluded from the CPA shall be competent and compellable to give evidence in criminal proceedings. Section 198 of the CPA provides that, spouses shall not be compelled to disclose any communications made to each other during the course of the marriage.

Section 10 and 12 of the Civil Proceedings Evidence Act 25 of 1965 (CPEA) provides that no spouse shall be compelled to disclose any communication made during the marriage and no such person shall be compelled to answer any questions or give any evidence of the spouse if under examination as a witness. This means that a spouse cannot be subpoenaed to testify against their spouse.In law this is known as marital privilege.

Even if the evidence is admissible in court and is highly relevant in the criminal proceedings, spouses have the right to refuse to disclose the evidence when testifying in court.

Can I testify against my spouse?

Should a person wish to testify against their spouse they are able to do so, the marital privilege provision has been put in place to ensure that spouses are not forced to do so. In South Africa unlike other jurisdictions, a spouse that is being testified against cannot bar the testifying spouse against them.

Are there any limitations on marital privilege?

Although spousal privilege is guaranteed, it does not apply in all circumstances. Section 195 of the Criminal Procedure Act provides that there are certain instances in which a spouse cannot rely on marital privilege. The section provides for the following exceptions:

(a) Any offence committed against the person of either of them or of a child of either of them or of a child that is in the care of either of them;

(b) Any offence under Chapter 8 of the Child Care Act, committed in respect of any child of either of them;

(c) Any contravention of any provision of section 31 (1) of the Maintenance Act, or of such provision as applied by any other law;

(d) Bigamy;

(e) Incest as contemplated in section 12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act;

(f) Abduction;

(g) Any contravention of any provision of section 2, 8, 10, 12, 12A, 17 or 20 of the Sexual Offences Act,

(gA) Any contravention of any provision of section 17 or 23 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act,

(h) Perjury committed in connection with or for the purpose of any judicial proceedings instituted or to be instituted or contemplated by one of them against the other, or in connection with or for the purpose of criminal proceedings in respect of any offence included in this subsection;

(i) The statutory offence of making a false statement in any affidavit or any affirmed, solemn or attested declaration if it is made in connection with or for the purpose of any such proceedings as are mentioned in paragraph (h).

Who can rely on the marital privilege clause?

Only married persons who have concluded marriages that are recognised by South African law have been given the right to invoke marital privilege in terms of section 198 of the CPA. The provision also applies to persons that are divorced, however this is only for matters communicated during the course of the marriage; anything communicated after the dissolution of the marriage is not protected by marital privilege.

It fails to provide for individuals in a lifelong relationship or those whose marriage is not recognised by South African laws.

This may amount to unfair discrimination as everyone has the right to equality. However, as it stands, only individuals who are in a legally recognised marriage can invoke the right not to testify against their spouse.

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