The legal side of marrying in South Africa
Published
The ceremony you plan and the marriage the state recognises are two different things. Only one of them is governed by statute, and it is not the one on the mood board.
Almost every planning conversation is about the celebration. The legal marriage is a short, procedural event that sits inside it, and it fails for boring reasons: the officiant was not designated for the kind of marriage you are entering, the documents were incomplete, or nobody worked out who signs.
Three separate statutes
South African law does not have one marriage. It has three parallel systems, each with its own Act, its own officers and its own paperwork.
- Civil marriage, under the Marriage Act. The familiar route: a designated marriage officer, a prescribed formula, witnesses, a register.
- Customary marriage, under the Recognition of Customary Marriages Act. Negotiated and celebrated according to customary law, and fully recognised. It is covered separately in customary marriage and the planning consequences.
- Civil union, under the Civil Union Act. Available to same-sex and opposite-sex couples, and registrable as either a marriage or a civil partnership.
The distinction matters for one practical reason. A person designated as a marriage officer under one Act is not automatically an officer under another. Ask your officiant, in writing, which Act they are designated under and confirm it is the one you intend to marry under. This single question resolves the most common legal problem at South African weddings.
Legislation to consolidate the three statutes into a single Marriage Act has been in progress for several years. Do not assume the position you read about two years ago is still current — check with the Department of Home Affairs or your officiant.
The marriage officer is the real constraint
Two categories of people can solemnise a civil marriage: officials of Home Affairs, and ministers of religion or officers of religious denominations who have been designated as marriage officers. Nobody else can, however good they are at public speaking.
This is where destination weddings come unstuck. A friend, a family member or a professional celebrant can conduct a beautiful ceremony, but unless they hold a designation the ceremony has no legal effect. Couples who want a personal ceremony usually run two: a designated officer performs the legal solemnisation, and someone they love performs the ceremony everyone remembers. There is nothing wrong with this. It only becomes a problem when it is discovered a fortnight beforehand.
Where the ceremony may take place
The Marriage Act is more particular about place than most couples expect. It contemplates a building used for religious services, a public office, or a private dwelling house, and it contains conditions about the doors being open and the parties and witnesses being present.
In practice this is why so many South African venues have a small chapel, a barn or a house on the property, and why an open cliff-top ceremony is often paired with a signing indoors. Ask your marriage officer to confirm, in writing, that the exact position you have chosen is one at which they are prepared to solemnise. Some are comfortable with a broad reading; some are not. You need to know which sort you have engaged before you build a ceremony around a view.
This intersects directly with beach ceremonies and municipal permission, where the legal and the municipal questions arrive together.
Witnesses, the register and the formula
A civil marriage requires the parties, the officer and at least two competent witnesses, who sign the marriage register. The officer uses a prescribed formula and the parties declare that there is no lawful impediment. It takes a few minutes.
Choose your witnesses in advance and tell them. They need to be present at the signing, sober, in possession of their identity documents, and not on the far side of the property taking photographs. It is a trivial detail that goes wrong at a surprising number of weddings.
The certificate you leave with
On the day, the officer issues a handwritten abridged marriage certificate. It is genuine, but it is short-form. The unabridged certificate is applied for separately from Home Affairs and takes time to arrive.
If either of you will need proof of marriage for immigration, a visa application, a pension, a bank or a name change in another country, you almost certainly need the unabridged version, and possibly an apostille or legalisation on top of it. Start that application immediately after the wedding rather than when you discover you need it.
Documents
Expect to produce identity documents or passports for both parties. A previous marriage that ended requires proof: a final divorce decree, or a death certificate. A party who is not a South African citizen is generally asked for a letter of no impediment from their own country's authorities, which can take weeks to obtain and is the single most common cause of a delayed legal ceremony.
If your guests are travelling internationally, what to tell overseas guests covers the formalities on their side.
Property regime
Marrying in South Africa without an antenuptial contract means marrying in community of property. That is a substantive financial decision, not a formality, and it is made by default if you do nothing.
An antenuptial contract must be executed before the wedding, in front of a notary, and registered afterwards within a limited period. If you want one, it belongs in the diary alongside the venue deposit, not in the fortnight before the wedding. Speak to a notary or an attorney; this guide is not the place for advice on your own affairs.
What to actually do
Get the officer's designation confirmed in writing. Confirm the ceremony position with them. Name your two witnesses. Assemble the documents early. Decide on the property regime while there is still time to act on it. Then go back to the seating plan.