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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 drawn up in terms of the Marriages Act 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 in terms of the Constitution they are now equal with Christian marriages in most cases.

For a civil marriage, there are many laws about who can marry and how they can marry. For example:

• The law says you can't marry again until your first spouse dies, or until the first marriage ends in divorce. If you marry while you are still married to someone else, you are guilty of the crime of bigamy.
  
• You cannot marry and/or have sex with close relatives. 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 (people under 21) 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 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 of the Republic of South Africa 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. 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 Ac, 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 not otherwise be allowed by law to marry 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, 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 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 ceremony takes place after the man's family have paid all or part of the lobola.

The Recognition of Customary Marriages Act of 1998 gives full legal recognition to customary marriages.

The 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: The property systems for customary unions entered into before the Act will continue to be governed by customary law. Partners to a customary union 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 a family court established under any law 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.

All marriages formed after the Act will automatically be in community of property unless the parties draw up an ante-nuptial contract.

Inheritance: The Recognition of Customary Marriages Act does not change the law on inheritance but a new law that deals with this is being debated in terms of a recent Constitutional Court judgment in the case of Bhe and others v The Magistrate, Khayelitsha and others 2005(1) SA 580 (CC) it was held that the customary law rule of primogeniture (that the oldest male relative inherits all) 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 . A new Act dealing with this is being debated.

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 some 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.

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 priest who is a marriage officer, the law will recognize their marriage. The husband then cannot marry any other woman by civil law or religious law.

The legal consequences of recognizing Muslim and Hindu marriages has been debated in the Law Commission and broader public for a number of years but there is as yet no agreement. In the meantime, rights have been given to spouses in Muslim marriages in bits and pieces in the same way that they have for domestic partnerships.

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

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.

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 partners 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 half (forfeiture of benefits) 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 but the husband still had the marital power. 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 own property and his wife's property. Africans could marry in community of property if they wanted to but they could only do this if the husband was not married to any other woman by customary marriage.

In 1988 the Marriage and Matrimonial Property Amendment Act (No 3 of 1988) changed the law about civil marriages of Africans and made them the same as any other civil marriage. So marital power is 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 go to the High Court and ask the court to change their marriage from a marriage in community of property to one out of community of property, or the other way around. Both husband and wife must apply together and must give the court good reasons for wanting to change the way they were married.