--- MARRIAGE - A BINDING CONTRACT ---
I recently listened to a powerful sermon on how to choose a marriage partner, which certainly reinforced many of my feelings
on the subject of how, all too often, this major decision in life is taken far too lightly. One of the points that the minister
made was that marriage is something that is very easy to enter into but, unlike other agreements we might encounter during the
course of our lives, in marriage there is no 30-day 'cooling-off' period or money-back guarantee! If it doesn't work out, the
consequences are devastating and costly.
It perturbs me when I see couples putting all their energy into planning their reception and living only for the big day, with
scant thought being given to the actual ceremony or, even more importantly, to their life together after the honeymoon. Many
couples need reminding of the fact that marriage is in fact a binding contract. It is a serious, life-long commitment that two
people make to each other. Being a legal agreement, there are certain requirements you will need to attend to before your wedding
to ensure that your marriage will be valid in the eyes of the law.
The South African Marriage Act lays down all the rules that regulate how a marriage should be solemnized, who may marry one another,
as well as where and how the marriage may be conducted, and by whom. If you fail to comply with the regulations set out in this Act,
your marriage could be declared null and void, which is obviously something you do not want to happen. After the bride and groom, the
most important person at the wedding is the marriage officer as, according to the Act, only a marriage officer may conduct a marriage.
Only marriage officers authorised in terms of Act No. 25 of 1961 to perform marriages, may do so. Presently, civil marriages are
solemnized at offices of the Department of Home Affairs and at places of worship with authorised marriage officers. Also, according
to the Marriage Act, the ceremony must take place in a church or other building used for religious services, or in a public office
(such as the Department of Home Affairs), or in a private dwelling. During the service the chosen venue must have 'open doors' and the
service must be conducted in the presence of the parties themselves and two witnesses. It is interesting to note that a marriage service
conducted without two witnesses is not considered legal, so bear that in mind before you decide to to elope quietly to a deserted beach!
Speaking of which, if you should plan to marry on a beach or in a garden, it is best to repeat the legal part of the service indoors, so
as to avoid any doubts as to whether you are formally married or not. The same applies to marrying in a restaurant or other building not
defined by the Act.
Speak to your marriage officer in advance about the best way of combining the legal requirements with your chosen venue. However, as long
as your marriage is solemnized by a competent marriage officer, the courts are not readily inclined to declare a marriage invalid simply
because it was held in the wrong place. Also remember that if you plan to marry on a public beach you will need to obtain permission to
do so from the local council, and that the drinking of alcohol is not permitted on public beaches.
It is quite simple to marry in this country, as all the bride and groom need to produce is a valid passport or identity document. If you
don't have a South African Identity Document, you will need to complete a simple affidavit called a B1-31. All marriage officers are
Commissioners of Oaths and are competent to complete this affidavit with you. If previously divorced, you will need the divorce order and
if widowed, the death certificate of the late spouse.
I am often asked about when you can marry, i.e. time of day, etc. The short answer is that as long as you can find a competent marriage officer
willing to accommodate you, there is nothing to stop you marrying at midnight on a Sunday if that's what you want! It is quite popular today
for brides to continue using their maiden names after their marriage and there is certainly nothing to prevent you from doing so. There is
no special permission required or anything that you need to do, as you are not obliged by law to take your husband's name. This is in fact
quite a common practice amongst professional people such as doctors, attorneys and reporters who have built up a reputation under their maiden
names which they do not wish to lose.
The position may be a bit more complicated if you use both names, as you will not have an identity document reflecting your married name.
Production of your identity document in your maiden name, together with a copy of your marriage certificate, should however be sufficient to
satisfy any bank, etc. In terms of South African law, a couple may marry either without an antenuptial contract, that is in community of property,
or with one, which will generally exclude community of property and may be either with or without accrual. It is also very important to note that
in South Africa, if no antenuptial contract is signed prior to the wedding, you are automatically married in community of property. In layman's
terms this means that all property which is owned by either spouse becomes part of the joint estate upon marriage, whether it is theirs at the
time of the marriage or is acquired by them after the wedding. The downside of marrying in community of property is that, should either of you
face bankruptcy during the course of the marriage, your joint estate is vulnerable to the claims of your creditors. If you want to avoid this,
it is essential to visit an attorney prior to your marriage.
If you are a South African female marrying someone from a foreign country, bear in mind that the law of your prospective husband's domicile (his
home country) at the time of the marriage, applies - both during the marriage and on dissolution. Some countries will only ever apply their own law,
notwithstanding the fact that the parties desire their marriage to be governed by the law of the country where they were married. In these instances
it is best to contact an attorney prior to the marriage to enquire about your legal status. In closing I would like to share with you a statement that
appears on the display of a firm of attorneys who advertise at Celebration House. I have always found it to be profound, truthful and certainly food
for thought. It reads: 'Marriages may be made in heaven but they have to be lived on earth!
Article written by Pam Black owner of Celebration House, First published in Die Burger Leefstyl newspaper.