By Fezekile Dhlamini
Last month, the topic of marriage was introduced, and we discussed what a civil marriage is
and the requirements to conclude a valid civil marriage. We briefly discussed that civil
marriages are monogamous in nature and that they can only be entered into by heterosexual
couples (male and female). It was also highlighted that civil marriages are by default in
community of property unless the parties decide to enter into an antenuptial contract and get
married out of community of property.
This month we will be discussing the formalities of a civil marriage and also unpack the position of South African law on Engagements.
What are the formalities of a Civil Marriage?
A civil marriage must be solemnised by a duly appointed marriage officer. Thus, anyone who solemnises a marriage without the necessary authority is guilty of an offence. The above does not apply to religious ceremonies that do not purport to have the effect of a valid civil marriage. Authorised marriage officers are usually from the ranks of all magistrates, special justices of peace and commissioners. However, the Minister of Home Affairs may also appoint other persons to be marriage officers i.e., ministers of any religious faith.
During the marriage ceremony, anyone who wishes to raise an objection to an intended civil marriage must lodge the objection with the marriage officer, who is to solemnise the marriage in writing. The marriage officer must enquire about the grounds of the objection and may only continue if he/she is satisfied that there is no lawful obstruction to the marriage.
A marriage officer may not solemnise a civil marriage unless each party provides his/ her identity document or prescribed affidavit.
The Marriage Act requires that both parties must be personally present at the marriage ceremony. The civil marriage may be solemnised at any time and on any day of the week, but the marriage officer is not obliged to solemnise a civil marriage at any time other time than between 08:00 and 16:00. In terms of Section 29 (2) of the Act, a marriage may be solemnized in a church or any other building used for religious services or in a public office or private dwelling or house with open doors. There must be at least two witnesses to attest to the solemnisation of the marriage.
It is important for the Marriage officer to put the marriage formula to both parties separately to determine their intention to be part of the union, hence the response of “I do.” If the parties do not reply affirmatively, then the wedding cannot proceed. If they reply affirmatively, they must give each other their right hand, and the -marriage office then declares them husband and wife.
Registration of Civil Marriage
- The marriage officer who solemnises a civil marriage, the parties thereto and two competent witnesses must sign a register immediately after the wedding.
- The marriage officer then sends the register to the regional or district representative of the Department of Home Affairs.
- A copy of the entry in the register serves as proof that a civil marriage has been solemnised.
- Non-fulfilment of the registration requirements does not affect the validity of the Civil marriage and registration can be done at a later date.
- A duly issued marriage certificate serves as proof of the existence of a civil marriage. If no certificate is issued or applied for the marriage can be proved by means of other evidence.
A lot of people are not familiar with the above formalities. There are more formalities to the solemnisation of marriage than walking down the aisle and saying I do. All the formalities and requirements must be complied with for a civil marriage to be valid. If not, the marriage may be declared invalid.
Engagement
In terms of South African Common Law, an engagement between two persons is deemed to be a contract between two parties to marry each other on a specific date, or on a date in the future. Although a prior engagement is not necessary or legally required for a valid marriage, most civil marriages begin with an engagement.
Previously, parties could approach courts for an order of breach of a promise to marry. The current position is that courts are reluctant to grant orders of the breach, as a party should be entitled to step away from an engagement without any legal consequences. However, in certain instances and on proof supplied, a party may sue the other party for breach where there is financial loss incurred.
Currently, it seems the claim for any monies actually spent or incurred on preparations for the wedding can be claimed, as well as a claim for hurt feelings. An example of actual monetary loss could be payment in connection with the wedding reception or honeymoon.
Although it may seem unnecessary, it is important to ensure that all the formalities and requirements of concluding a valid marriage are complied with to avoid the marriage being declared invalid. Parties who wish to change their minds about marriage during engagement are not prohibited from doing so unless they have considered reimbursing the other party for costs incurred during preparation, as failure to do so will give them a leg to stand on to sue for a breach of promise to marry.
The idea of marriage is a beautiful one as long as it is done correctly.
Ms Fezekile Dhlamini is a candidate attorney at Rhodes University Law Clinic
