South African Law on Marriage

Yes, you can. In South Africa, you can have both a religious Nikāh ceremony and a civil marriage recognized under South African law. Many Muslim couples choose to do both to ensure their marriage is recognized both religiously and legally.

Your South African civil marriage will be according to the Marriage Act 25 of 1961.

Yes, the person marrying you (like a marriage officer) will ask each of you if you take the other as your lawful wife/husband. You both need to say “yes” in front of two witnesses. Then the marriage officer will declare you married.  The marriage officer must sign the marriage register after the solemnisation of a marriage and must issue you with a handwritten marriage certificate free of charge.

You can get married at:

• • Department of Home Affairs offices;
  • You can also get married at religious institutions or other public religious places if the person marrying you is a registered marriage officer.

To conclude a civil marriage in South Africa, you need to:

• • Both be at least 18 years old;
  • Consent to the marriage;
  • Not be already married (unless in a customary marriage);
  • Have valid ID documents (for each person getting married);
  • Have two witnesses present;
  • Be married by a registered marriage officer at Home Affairs or a designated religious institution.
  • If the wedding is for a minor (a person under the age of 18 years), the written consent of both parents/ legal guardian or the Commissioner of Child Welfare or a judge should be submitted with the relevant forms from the Department of Home Affairs
  • If any of the persons getting married are divorced, then the final decree of divorce should be furnished.
  • If any of the persons getting married are widowed, the deceased spouse’s death certificate must be submitted.

Yes, after your marriage, the marriage officer will 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. 

If your Imam is registered as a marriage officer with the Department of Home Affairs, then yes, he can conduct a South African civil marriage. However, not all Imams are registered marriage officers, so you should check first. Herewith is a list of Imams who are registered marriage officers in our community : https://www.dha.gov.za/index.php/civic-services/qualified-imams

The Matrimonial Property Act 88 of 1984 will govern property consequences of your marriage.

Yes, both spouses have a legal duty to support each other. This means you should both contribute to the household expenses and take care of each other, based on what each of you can afford or provide. This is different to Islamic law, where only the husband is responsible for financially supporting his wife and family.

• By default, civil marriages in South Africa are automatically in community of property, meaning all assets and debts are combined into a joint estate.
• However, you can choose to marry out of community of property with or without accrual, by signing an antenuptial contract before the marriage.

Advantages:

• • As spouses you will share all assets equally during your marriage;
  • Protection for a non-working spouse – for example if the wife is the primary caregiver in the family, which amounts to non-financial labour, she will still benefit from sharing ownership in half the assets in the joint estate.

Disadvantages:

• • Both spouses share liability for the debts incurred during the marriage;
  • Less financial independence for each spouse;
  • Potential complications in case of divorce.

Opinions vary, with some scholars arguing that in community of property conflicts with the Islamic concept of separate property regimes in marriage.  They also argue that one spouse cannot be held liable for the debts incurred by the other spouse.

This is like saying, “What’s mine is mine, and what’s yours is yours” throughout the marriage.

• • Each spouse has, and maintains, a completely separate estate;
  • Each spouse retains absolute independence of contractual capacity;
  • Each spouse’s assets are protected against claims by the other spouse’s creditors;
  • Each spouse is liable for his or her own debt.

Advantages:

• • Financial Independence: Each person keeps control of their own money and assets.
  • Protection from Debts: You’re not responsible for your partner’s debts.
  • Business Protection: If one person owns a business, it’s protected from claims if the marriage ends.
  • Simplicity: It’s straightforward – you each keep what you earn or buy.

Disadvantages:

• • No Sharing of Growth: If one person’s wealth grows a lot during the marriage, they don’t have to share it.
  • Risk for Non-Working Spouse: The person who takes time off work (often the wife) might be left with much less.
  • No Automatic Financial Support: If the marriage ends, there’s no automatic right to share in the other’s wealth.
  • Potential for Unfairness: If one person sacrifices career for family, they don’t get compensated for this.

Special Considerations for a Wife Taking Time Off:

• • Financial Vulnerability: If you stop working to raise kids, you’re not building your own wealth or career during this time.
  • No Compensation for Sacrifice: Your contribution to the family by staying home isn’t reflected in a financial way.
  • Retirement Concerns: You might miss out on years of saving for retirement.
  • Difficulty Returning to Work: It might be hard to restart your career after a long break.
  • Dependence on Partner: You might become financially dependent on your spouse.

Important Points:

• • This system can work well if both partners have similar earning potential and continue working.
  • It’s riskier for the partner who earns less or takes time off work.
  • You can include special provisions in your contract to address these issues, like agreeing on spousal support.
  • It’s crucial to discuss how you’ll handle finances, especially if one person plans to stop working.
  • Consider talking to a financial advisor or lawyer about how to protect both partners’ interests.

Remember, while this system offers protection and independence, it can lead to financial imbalance, especially if one partner sacrifices career for family. It’s important to have open, honest discussions about how you’ll manage finances and support each other before choosing this option.

Yes, you have to conclude an ante nuptial contract for a marriage out of community of property without the accrual. You have to conclude the ante nuptial contract before both, your religious ceremony (nikāh), and before your civil marriage ceremony.

While your Imam may provide religious guidance, ANCs are legal documents. It’s advisable to have a legal professional draft this document to ensure it is legally binding and comprehensive.

You should consult with a lawyer, preferably one who specializes in family law or matrimonial property regimes. They can ensure your contract is legally sound and reflects your wishes.

No, only a notary can register your ante nuptial contract. A notary, or more specifically a notary public, is a legal professional who has special certification and authority to witness and certify important documents. In South Africa, a notary is typically an attorney who has passed additional exams to become a notary public.

The notary’s job is to:

• • Witness the signing of the ANC and confirm that everything is done properly and legally;
  • Make sure that both parties understand what they’re signing and are doing so willingly;
  • Place their official seal on the document, which gives it legal weight;
  • Register the ANC with the Deeds Office within three months of the marriage;

Remember, while a notary plays a crucial role, it’s still a good idea to consult with a family law attorney to help draft the content of the ANC to ensure it reflects your wishes and protects your interests.

An ANC can include:

• • How you wish to divide your assets and liabilities during your marriage;
  • Whether the accrual system will apply;
  • How future inheritances will be handled;
  • Arrangements for maintenance in case of divorce;
  • Any other financial arrangements you both agree on.

• Each spouse keeps their own separate property and finances.
• They can buy things or take on debts without needing their partner’s permission or help.
• Their money and belongings are kept separate throughout the marriage.

The Accrual System Explained Simply:

Starting Point:

• • When you get married, you each keep your own stuff separate.
  • It’s like you both start the marriage with empty piggy banks.

During the Marriage:

• • You both continue to own your things separately.
  • But you’re also keeping track of how much your wealth grows.

If the Marriage Ends:

• • You look at how much each person’s wealth has grown since the wedding.
  • The person whose wealth grew more shares the growth with the other.

What’s Included:

• • Pretty much everything you earn or buy during the marriage.
  • Investments that increase in value.
  • Property you buy.
  • Money you save.

What’s Usually Excluded:

• • Things you owned before you got married.
  • Inheritances you receive.
  • Gifts given specifically to you.
  • Any money paid to you for personal injury.
  • Things you list as excluded in your ante-nuptial contract.

Basically, the accrual system is a way for married couples to keep their finances separate during the marriage, but still have a fair way to divide things if they split up.

Let’s say, when you divorce:

• • Partner A’s wealth grew by R500,000
  • Partner B’s wealth grew by R300,000

The difference is R200,000. Half of this (R100,000) would be shared. So Partner A would pay R100,000 to Partner B to even things out.

Key Points to Remember:

• • It’s a fair way to share growth in wealth during the marriage.
  • You keep your pre-marriage assets separate.
  • You can decide to exclude certain things in your ante-nuptial contract.
  • It protects both partners, especially if one earns less or stays home to care for family.

Remember, while this explanation aims to be simple, accrual can get complex. It’s always a good idea to talk to a lawyer who can explain how it would work in your specific situation.

Advantages:

• • Protection of Pre-marital Assets:
    • Assets you owned before marriage remain yours.
    • Inheritances and gifts received during marriage are typically excluded.
  • Debt Protection:
    • You’re not automatically liable for your spouse’s debts.
  • Business Security:
    • If you own a business, it’s protected from claims if the marriage ends.
  • Fairness in Growth:
    • You share the growth of your estates during the marriage.
    • This can benefit a spouse who earns less or takes time off for family.
  • Financial Independence:
    • Each spouse manages their own finances during the marriage.
  • Flexibility:
    • You can exclude certain assets in your antenuptial contract.

Disadvantages:

• • Complexity:
    • It’s more complicated than a simple in or out of community marriage.
    • You need to keep track of your estate’s value over time.
  • Initial Costs:
    • You need to pay for drafting and registering an antenuptial contract.
  • Potential for Disputes:
    • Determining the growth of estates can lead to disagreements if the marriage ends.
  • Less Protection Than Full Community of Property:
    • The non-working spouse might receive less than in a community of property marriage.
  • Need for Proper Record-Keeping:
    • You must maintain good financial records to accurately calculate accrual.
  • Possible Manipulation:
    • There’s potential for a spouse to try to hide assets or reduce their apparent accrual.

Important Considerations:

• • It’s a good middle ground between full separation and full sharing of assets.
  • It can be particularly beneficial if one spouse plans to take time off work or earn significantly less.
  • The success of this system depends on honest disclosure and good record-keeping.
  • You should carefully consider what to include or exclude in your antenuptial contract.
  • It’s crucial to get professional legal advice to fully understand how this will apply to your specific situation.

Remember, while this system aims to balance protection and fairness, its suitability depends on your individual circumstances. It’s always recommended to discuss your options thoroughly with your partner and seek advice from a qualified legal professional before making a decision.

From a South African law perspective the courts have ruled that all Muslim marriages are valid.  However, this does not mean the courts recognise all the Islamic law consequences flowing from your Muslim marriage.