Marriages not under the Marriages Act – Same-sex marriages and customary marriages

Marriages not under the Marriages Act – Same-sex marriages and customary marriages
14 Apr 2021

South Africa’s Constitution is one of the most progressive in the world. In fact, South Africa was one of the first countries in the world to safeguard sexual orientation, culture, race and gender as an actual human right in our Constitution – something often taken for granted by those of us who are not in same-sex relationships, by those of us who are not married according to customary law, and those of us who do not have to fear for our basic human right to freedom of choice.

Equality under the Constitution

Section 9 of the Constitution, entitled “Equality”, states:

The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

This means that the discrimination of anyone based on their race, gender, marital status, culture or sexual orientation is against the law. But being able to love whoever you want to love and marry whoever you want to marry is one thing. Having it truly recognised and protected under our legal system is something entirely different.

Taking it for granted

Marriage and the sanctimony of marriage is something a lot of us take for granted. Getting married, in the “ordinary course” (i.e. civil marriages between heterosexual couples not under customary law but under the ”straightforward” Marriages Act 25 of 1961) is often only filled with decisions like which flavour wedding cake to pick and which marital regime to choose. Complex and important decisions, we are not denying that. But also readily accepted without complication (normally).

Yes, some of us may have other complications such as needing to be married according to the laws of South Africa as well as those of our religions, like Jewish weddings – where the additional requirements of ketubahs and chuppah’s are needed to complete the ceremonies. But they are still in the ordinary course (mostly). And are pretty straight forward (for the most part).

But, fear not, Benaters is able to advise you on which marital regime to choose (according to your individual circumstances and preferences) and undertake the drafting of the necessary ante-nuptial contract (ANC). We have written about some of the practical steps to take into consideration here.

But these are not the situations we want to talk about. We want to talk about the marriages that are not in the ordinary course – as in not civil marriages under the Marriages Act 25 of 1961. We want to talk about the unions and marriages that are specifically protected under our Constitution. The ones where the couples have had to fight against societal disapproval, religious limitations, discrimination and bigotry.

Like same sex marriages and customary marriages.

And more specifically, we want to discuss how these couples get married under our law and whether it is with or without ANCs.

Same-sex marriages

Despite the rights as listed under our Constitution, specifically those relating to equality as protected under section 9, just ten years ago intimate homosexual relationships were a crime. Public displays of affection between a gay or lesbian couple were considered indecent.

In fact, one of South Africa’s most bizarre and notorious anti-gay laws “was introduced after a police raid on a gay party in a suburb of Johannesburg in 1966”, resulting in amendments to the notorious Immorality Amendment Act 57 of 1969, which criminalised any –

male person who commits with another male person at a party any act which is calculated to stimulate sexual passion or give sexual gratification”. A “party” was defined as “any occasion where more than two persons are present“.

The so-called “three men at a party clause“….

But, many years on, things have dramatically changed. In fact South Africa was the fifth country in the world to legalise same-sex marriages in 2006, when the Civil Union Act No. 17 of 2006 (the “CUA”) came into force on 30 November 2006.

But this legalisation of same-sex marriages was (in fact) made possible by the Constitutional Court’s unanimous decision in Minister of Home Affairs v Fourie, which was handed down on 1 December 2005. This decision extended the common-law definition of marriage to include same-sex spouses— “as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation”.

The CUA allows two people of any sex to be married or enter into a civil partnership. Like any other civil marriage, a same-sex marriage or civil union must be solemnised by an authorised marriage officer in South Africa. Furthermore, the marriage must be registered through the Department of Home Affairs.

Therefore, couples entering into same-sex marriages enjoy the same benefits as those entering into civil marriages under the Marriages Act. Any reference to a husband, wife or spouse in any law is deemed to include a civil partner, and the divorce laws for heterosexual married couples are the exact same as those for same-sex partners.

Same-sex partners also have the same status as any heterosexual couple including that of inheritance and end-of-life decision-making, being registered as a dependent on the other partner’s medical aid scheme, qualifying as a spouse in terms of the Intestate Succession Act, Act 81 of 1987, equal immigration rights and adoption rights.

The legal implications of a civil partnership made under the CUA are exactly the same as those under the Marriages Act.

What do we mean?

As is well-known (and as we have discussed in our article The Lowdown on Ante Nuptial Contracts and the Accrual System), if you do not draw up an ANC prior to your marriage/union, it will automatically be regarded as being in community of property and the provisions of the Matrimonial Property Act of 1984 apply.

If a couple entering into a same sex marriage/civil union do not want their matrimonial regime to be in community of property, they must enter into an ANC and decide whether they want to marry out of community with accrual, or out of community without accrual.

As straight forward as that.

But there are still those who don’t agree with same-sex marriages

Despite the above, there have still been those who have refused (due to religious reasons, on moral grounds and contrary to their beliefs) to solemnise the union, thereby preventing the couple from getting married and in turn creating unfair discrimination, infringing on the couple’s rights as set out under our Constitution.

In answer to this inequality, President Cyril Ramaphosa has assented to a new piece of legislation which brings change to civil unions.

The 2020 Civil Union Amendment Act, which was gazetted on Thursday 22 October 2020, came into effect immediately. According to the new legislation, marriage officers may no longer object to solemnising a civil union between persons of the same sex. The Act also requires the minister of Home Affairs to ensure that there is a marriage officer available to solemnise a civil union at every office of the Department of Home Affairs.

This new amendment repealed Section 6 of the CUA, which previously provided that a marriage officer may, in writing, inform the Minister of Home Affairs that he/she objects to solemnising a civil union or same-sex marriage based on moral grounds, religion and belief.

No more we say, no more!

Hey ho – let’s go (get married)!

Customary marriages

In South Africa a customary marriage is understood as being entered into in accordance with the traditions and customs of indigenous African customary law. Within a customary marriage, there can be more than two spouses, known as a polygamous marriage. Usually only one of these spouses is male and the others are female.

A customary marriage is governed by a number of different laws, among them are the Recognition of Customary Marriages Act 120 of 1998 (the “RCA”), the Matrimonial Property Act 88 of 1984, the customary law that applies to the spouses cultures in particular as well as South African common law (which consists, inter alia, of rulings made by courts).

All customary marriages entered under the RCA (which came into force on 15 November 2000), were automatically deemed to be in community of property (provided one of the spouses was not a partner in any other existing customary marriage). This resulted in spouses, who were married in terms of Customary Law, after the commencement of the Act, enjoying the benefits (or disadvantages) of being married in community of property.

This rule of “in community of property” applied unless such consequences were specifically excluded by the spouses who wanted to be married out of community of property in terms of an ANC. Customary marriages were also required to be registered.

So, the same as civil marriages concluded under the Marriages Act.

With one caveat, non-registration did not affect the validity of a customary marriage but it did make it difficult (at a later stage) for the spouses to prove that they were legally married in terms of customary law.

Therefore the process here would inherently be the same as a marriage under the Marriages Act. If they did not enter into an ANC prior to the wedding, they would automatically be married in community of property.

But there have been criticisms about the RCA

Before the RCA, all customary marriages were governed by Customary Law and women who were party to customary marriages were not afforded the same protection and benefits to that of women who were party to civil marriages.

So, one of the main reasons for the enactment of the RCA was to provide for the equal status and capacity of spouses in customary marriages. But, since its commencement, the RCA has been criticised for having the opposite effect. It is the problematic words contained in Section 7(2) of the RCA that states –

a customary marriage entered into after the commencement of this Act

As the benefit of being married in community of property was not available to spouses who were married before the date of the commencement of the Act.

In addition, section 7(1) led to unhappiness amongst spouses, who were married before the RCA came into operation – as customary marriages entered into before the commencement of the Act continued to be governed by customary law.

This imbalance was addressed by the Constitutional Court (CC) in Gumede v President of the Republic of South Africa and Others 2009 (3) SA 152 (CC). The words ‘entered into after the commencement of this Act’ were declared inconsistent and invalid with the Constitution. The effect of the judgment was that monogamous customary marriages were to be treated as being in community of property, irrespective of whether they were entered into before or after the commencement of the RCA. However, the decision was unfortunately restricted to monogamous customary marriages. Only.

It is only in more recent times that issues surrounding polygamous customary marriages have enjoyed legal scrutiny. Firstly, one should take note of section 7(6) of the RCA, which provides that –

A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract, which will regulate the future matrimonial property system of his marriages”.

In the case of Ngwenyama v Mayelane and Another 2012 (4) SA 527 (SCA) the court declared that noncompliance with section 7(6) does not render the subsequent marriage void, but results in the marriage being out of community of property.

But clarity has finally been given on the marriage regime applicable to polygamous customary marriages entered into before the commencement of the Act, and the effect thereof on matrimonial property. This relief came from the case of Ramuhovhi and Others v President of The Republic of South Africa and Others 2018 (2) SA 1 (CC). In this case the court, at para 71, made the following order:

‘(a) Wives and husbands [of polygamous customary marriages] will have joint and equal ownership and other rights to, and joint and equal rights of management and control over, marital property, and these rights shall be exercised as follows:

(i) in respect of all house property, by the husband and the wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and

(ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.

(b) Each spouse retains exclusive rights to her or his personal property.’

The important take away here is that whether you are getting married to your same-sex partner under the Civil Union Amendment Act, want to get married under customary law by means of an ANC under the Recognition of Customary Marriages Act (and now the Judicial Matters Amendment Act 8 of 2017) or are entering into a civil marriage under the Marriages Act – the how you will get married will be the same.

And I am not sure about you, but that definitely gives a sense of comfort.

What’s more, Benaters has you covered. No matter which marriage you are entering into.

Get in touch today to see how we can support you during this very exciting time!

Article sourced from Benaters.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
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