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Chapter 8 - Family Law and Violence against Women

Marriage

Civil marriages

Marriage is a contract between a man and a woman entered into in terms of the Marriage Act 25 of 1961. According to this contract they agree to live together as husband and wife. Like other contracts, a marriage contract has rights and duties for each partner.

South African law recognises civil marriages, civil unions and customary marriages. Marriages according to Muslim or Hindu rites are not 'legal' marriages (see below), but enjoy limited recognition in certain circumstances.

For a civil marriage, there are certain rules that have to be obeyed in order for the marriage to be valid. For example:

• Both parties must agree to marry each other
• if you are already married civilly you cannot enter into another civil marriage   again until your first spouse dies, or until the first marriage ends in divorce. While you are civilly married and you marry someone else civilly  you are guilty of the crime of bigamy.
• You cannot marry and/or have sex with close relatives.eg a grandfather cannot marry his granddaughter. If you do, you are guilty of incest.
• Boys under 18 and girls under 15 cannot marry unless they have permission from their parents and the Minister of Home Affairs.
• Minors (persons under the the age of 18 years, as the Children’s Act defines a child as a person under 18 years) also need their parents' permission to marry.
• A marriage officer must conduct the civil marriage ceremony to make it legally valid.

Civil unions

In November 2006, following a long line of court cases recognising certain rights and responsibilities in same-sex partnerships, the Civil Union Act 17 of 2006 came into effect. This law provides for the legal recognition of marriages and civil partnerships, collectively referred to as civil unions, between two persons regardless of their sexual orientation or gender identity.

The Civil Union Act is in line with the Constitutional Court judgment in the case of Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs and Others which found that the common law definition of marriage in the Marriage Act, 1961, was inconsistent with the Constitution and was invalid to the extent that it did not allow same-sex couples to enjoy the same status, benefits and responsibilities given to heterosexual couples.

Requirements for registering a civil union

The Civil Union Act specifies the following requirements for registering a civil union.

• Anyone who is 18 years or older may enter into a civil union (in terms of the Civil Union Act) and can choose to register it as a marriage or civil partnership. When it has been registered a certificate will be issued with the details of the union.
• A person may only be a spouse or partner in one Marriage or Civil Partnership.
• A person who enters into a civil union is not allowed to also enter into a marriage under the Marriage Act or the Recognition of Customary Marriages Act 120 of 1998. In the same way, a person who is already married under the Marriage Act or the Recognition of Customary Marriages Act may not register a civil union in terms of the Civil Union Act.
• If a person wants to enter a civil union and he or she has previously been married under either the Marriage Act, Recognition of Customary Marriages Act, or registered as a spouse in terms of the Civil Union Act, the person must present a certified copy of the divorce order or death certificate of the former spouse or partner as proof that the previous marriage or civil union is no longer valid.
• A civil union may only be registered by two civil union partners who would, apart from the fact that they are same sex,  not  be  prohibited by law from marrying each other under the Marriage Act or Recognition of Customary Marriages Act.
• A valid South African identity document is necessary for the registration of a civil union.
• All the legal and material benefits and responsibilities that flow from marriages entered under the Marriage Act will also apply to marriages or civil partnerships registered in terms of the Civil Union Act.
• Any civil marriage officer, for example, a Magistrate, selected government officials and/or special justice of the peace, as recognized by the Marriage Act, are automatically entitled to conduct marriages and civil partnerships under the Civil Union Act. A minister of religion and the religious organisation must first get authorization from the Minister of Home Affairs to register a civil union.

See Problem 2: Entering into a civil union.

African customary marriages

When Africans marry, you can choose to marry by African customary law (traditional customs) OR by the ordinary civil law of the land. An African customary marriage takes place without a civil marriage officer. The families agree on the lobola or bride-price. The customary ceremony takes place after the man's family has paid all or part of the lobola.

The Recognition of Customary Marriages Act 120 of 1998, which came into effect on 15 November 2000, gives full legal recognition to customary marriages. If you got married before the Act came into effect, your marriage will still have legal recognition and protection if it complies with the customary law and was still in existence after the implementation of the Act. If your spouse died or you got divorced before the Act came into force, your marriage is not protected by this Act,

Does the law distinguish between customary marriages entered before and after the implementation of the act?

Yes, there are different legal implications. Women married before the implementation of the Act fall under the customary law prevailing at the date the marriage was concluded.  However, in the Gumede case [Gumede (Born Shange) v President of the RSA and others [2008] JOL 22879 (CC) which challenged the failure of the legislature to make the provisions of the Recognition of Customary Marriages Act retrospective,.the court ruled that this differentiation was unfairly discriminatory: The practical result was that all marriages entered into before the Act came into force  which were still regarded as being out of community of property were now regarded as being in community of property. As a result of this case the law does not distinguish between monogamous customary marriages before and after the implementation of the Act with regard to being in community of property.

The Recognition of Customary Marriages Act states the following:

Equal status and capacity: The wife in a customary marriage is no longer regarded as a minor. She has equal status and capacity to her husband. This means she can buy and sell assets, enter into contracts and take a case to court.

Validity: Both partners to a customary marriage must consent to the marriage and they must be 18 years or older. If a person under the age of 18 wants to enter into a customary marriage, he or she must first get permission from the Minister of Home Affairs.

Registration: The marriage must be registered with a registration officer at the Department of Home Affairs. The main purpose of registering the marriage is to provide proof that a customary marriage exists, which will help the parties if any dispute arises about the validity of the marriage. Failure to register a customary marriage does not affect the validity of the marriage.

Property and assets:  All marriages concluded  after the Act and monogamous marriages concluded before the Act according to African custom ( as a result of the Gumede case)will automatically be in community of property unless the parties draw up an ante-nuptial contract. Polygamous unions concluded before the Act are governed by customary law.
Partners to a customary  marriage can apply to the High Court to change the property system of their marriage. If the husband wants to enter into another customary marriage, the husband, existing wife/wives, and the future wife must enter into a contract to develop a new property system and ask the High Court or  Regional Magistrates court (family court)  to approve the contract. The court will try to look after the interests of all the parties by deciding what the assets are worth and making sure that the existing wife and children get a fair deal.

Inheritance: The Recognition of Customary Marriages Act does not change the law on inheritance but a new law that deals with this was passed in 2009 called the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. This legislation does away with the rule of primogeniture  (the rule that the oldest male relative inherits all)  that was challenged  in the case of Bhe and others v The Magistrate, Khayelitsha and others 2005(1) SA 580 (CC). In this case the Constitutional Court  held that the customary law rule of primogeniture  is unconstitutional and that estates of all black people who die without leaving a will should be dealt with as set out in the Intestate Succession Act .

Custody of children: The court can decide who will have custody of children born into a customary marriage and what maintenance should be paid. The decision will be based on what is best for the children.

A customary union is still recognised for these cases:

• the partners can claim support money from each other if they are divorced
• a wife can claim  inheritance rights if her husband dies
• a wife can claim benefits under a pension scheme if her husband dies
• a wife can claim compensation under the Compensation for Occupational Injuries and Diseases Act if her husband dies in an accident at work.

May a woman who is married before the implementation of the Act, have her customary marriage governed by the provision of the Act?

Yes, the Act makes provision for these women to change the legal consequences of their marriage in order to create equal status and capacity for both the husband and the wife. The parties must apply to court stating good reasons for the change and show that no third person will be prejudiced.

Does the Act make provision for polygamous marriages?

The Act does allow a man to enter into multiple marriages. However, this has to be done in accordance with the provisions of the Act. The Act states that if a man wishes to enter into a polygamous marriage he has to apply to the court for permission. In his application he must set out the property systems for all of his wives. All interested parties must be represented in the application, particularly the existing and future wives. The court must consider the circumstances to ensure that the contract fairly divides the existing marital property. The court has the power to accept, add a condition or refuse to accept a contract.

This provision is intended to protect all wives, children and family members.

Muslim and Hindu marriages

Traditional Muslim and Hindu marriages are not recognised by civil law. But if spouses go through a civil marriage ceremony or are married by a Muslim or Hindu priest who is a marriage officer, the law will recognize their marriage. The husband then cannot marry any other woman by civil law

The legal consequences  of recognising Muslim and Hindu marriages have been debated in the South African Law Commission and broader public for a number of years but there is as yet no agreement. The recognition of religious marriages has been on the cards for a long time. In the meantime, rights have been given to spouses in Muslim and Hindu marriages in bits and pieces through court cases.

Court decisions dealing with recognition of Muslim and Hindu marriages

In the case of Amod v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 (SCA), a surviving spouse from a Muslim marriage was given the right to claim damages for loss of support from the Fund when her husband died in a motor accident.

In the case of Khan v Khan TPD case no: 82705/03 / A 2705/2003 a Muslim woman who was party to a polygamous Muslim marriage was given the right to claim maintenance from her spouse in terms of the Maintenance Act.

In the case of Mahomed v Mahomed (2008 ECP),  and in Hoosain v Dangor (2009 CPD), the courts recognised the right to claim interim maintenance while waiting for the outcome of the main action which asked the court that Muslim marriages be governed by the Divorce Act.

The courts have recognised the right of a spouse married according to Muslim rites to inherit from her deceased’s husband’s intestate estate.

In the case of Daniels v Campbell N.O. and Others 2004 (5) SA 331 (CC), the Applicant was given the right to claim maintenance and inheritfrom the estate of her deceased husband to whom she had been married by Muslim law, in terms of the Maintenance of Surviving Spouses Act and Intestate Succession Act..

Inthe case of Hassam v Jacobs N.O. and others [2008] JOL 22098 (C), where the Applicant was the wife of the deceased in a polygamous marriage, the court allowed both wives to inherit a child’s share of the estate.

Courts dealing with the recognition of Hindu marriages

In the Prag matter ( Wynberg court ref.31008MAI000680) the maintenance court recognised the duty to maintain where the parties were married according to Hindu rites.

In the Govender matter( Govender v Ragavayah NO and Others (Women’s Legal Centre Trust as amicus curiae) [2008] JOL 22653 (D)) , a wife was entitled to inherit from her deceased’s husband’s intestate estate to whom she was married according to Hindu rites.

The rules of civil marriage

Marriages create certain rights and duties for the husband and wife. In all marriages, couples have a legal duty to support each other. This means that they must look after any children and the home, and provide the family with food and clothing, medical care and other 'household necessaries'. Either or both partners work to earn money.

All civil marriages are automatically in community of property, unless the parties sign an ante-nuptial contract before the marriage. (Except African marriages before 1998, which were automatically out of community of property unless the partners clearly chose to marry in community of property.)

Marriages in community of property

This is the automatic system of marriage. In other words, if you get married without signing any contract, you will automatically be married in community of property.

'In community of property' means that everything the couple own and their debts, from before their marriage are put together in a joint estate. And everything they earn or buy and any debts incurred after their marriage are also part of this joint estate.

There is joint administration of the things the couple own. This means the husband and wife share in controlling their joint property. To protect each spouse, the other partner's written permission is necessary for big things like buying or selling a house, signing credit agreements, withdrawing money from accounts in the other spouse's name and so on.

If they get divorced the joint estate gets divided into half. One half belongs to the wife, the other to the husband. Any debts are also shared. The court does have a discretion to order that one spouse will not get  his/her half share that he/she will be entitled to by granting an order of  forfeiture of benefits or a redistribution of the assets   if, taking into account various factors, it believes it would be unfair for everything to be split equally.

In terms of the Matrimonial Property Act (No 88 of 1984), the marital power of a husband over his wife was scrapped. Now a woman married in community of property:

• has equal rights to administer the joint estate
• can enter into contracts without her husband's permission
• can sue or be sued in her own name

Both men and women must now say what their marital status is when they fill in forms.

Marriages out of community of property with an ante-nuptial contract

Before they marry two people can make an agreement called an ante-nuptial contract. Usually this agreement excludes community of property. This means the husband and wife each own and control their own things - they have separate estates.

Under the Matrimonial Property Act the accrual system automatically applies to their marriage, UNLESS they agree in their ante-nuptial contract that they do not want the accrual system.

'Accrual' means to increase. The accrual system recognises that during a marriage the husband and wife keep on adding to their joint property. For example, they may add to their property by both working and bringing money into the marriage. Or one spouse may add indirectly by staying home and looking after the home and children so that they do not need to employ someone to do that. The accrual system allows both partners to benefit from the growth to either of their property during the marriage.

While the marriage lasts, the husband controls his own separate estate and the wife controls hers. But if they divorce or when one spouse dies, any increase in the value of both estates gets shared equally by the partners. If the couple chose not to have the accrual system, if they divorce the partners keep their own things and are responsible for their own debts.

This is how the accrual system works:

• Certain things are excluded from the accrual system, such as inheritances and gifts.
  
• At the beginning of the marriage the property of each spouse is valued.
  
• During the marriage each spouse controls and adds to his or her own property.
  
• When the marriage ends through death or divorce, the value of each spouse's property before the marriage gets compared with the value at the end of the marriage. This shows the increase in each spouse's property. (Inflation is taken into account.)
  
• Take the smaller increase in value away from the larger increase in value. Divide this amount in half. The spouse with the smaller increase in value has a claim against the other spouse for half of this difference so that they end up with the same accrual.

Civil marriages of Africans before 1988

Africans married by civil marriage ceremonies before 2 December 1988 were automatically married out of community of property with no accrual  and the husband  had  marital power in terms of the Black Administration Act 38 of 1927.. So, each partner kept his or her separate property and each partner owned any property he or she got during the marriage. But the husband had the marital power, so he managed both his property and his wife's propertyIn 1988 the Marriage and Matrimonial Property Amendment Act (No 3 of 1988) changed the laws  for civil marriages of Africans and made them the same as any other civil marriage. This meant that  marital power  was scrapped, the automatic marriage is in community of property unless couples sign an ante-nuptial contract, and out of community of property marriages have the accrual system unless couples choose not to have it.

From 1998, the Recognition of Customary Marriages Act (No 120 of 1998) has recognised all African customary unions as legal marriages. All new marriages formed after the Act will automatically be in community of property unless the parties draw up an ante-nuptial contract. In terms of this Act the husband has no marital power.

See African customary marriages.

Changing the way you were married

Even though the laws may have changed since you were married, your marriage is still governed by the way you were married and the rules of marriage for that kind of marriage at that time (except that marital power is automatically scrapped).

Married people can apply to the High Court and ask the court to change their marriage from  in community of property to one out of community of property, or the other way around. Both husband and wife must apply together, they must prove that no other party will be disadvantaged, notice of the change has been given to all their creditors and must give the court good reasons for wanting to change the way they were married.