Family
Three recognised marriage regimes, and same-sex marriage since 2006
South Africa recognises civil marriages, civil unions and customary marriages, each with its own formalities and property consequences. It was the first African state to open marriage to same-sex couples, following the Constitutional Court's decision in Fourie and the resulting Civil Union Act 17 of 2006. Default matrimonial property is in community of property unless an antenuptial contract is registered before the marriage.
Key rules
- Jurisdiction — The High Court and designated regional magistrates' courts hold divorce jurisdiction; children's courts handle care and contact, and maintenance courts enforce support. Traditional courts continue to apply customary law in family matters.
- Deadline — Antenuptial contract: executed before the marriage and registered in a deeds registry within three months of signature
- Deadline — Customary marriage: registered within three months of conclusion, though non-registration does not invalidate it
- Deadline — Divorce: no separation period is required; irretrievable breakdown may be proved immediately
Governing law
- Marriage Act 25 of 1961 and Civil Union Act 17 of 2006
- Recognition of Customary Marriages Act 120 of 1998 — equal status, including for polygynous marriages
- Divorce Act 70 of 1979 — irretrievable breakdown, forfeiture, and redistribution
- Matrimonial Property Act 88 of 1984 — the accrual system
- Children's Act 38 of 2005 — parental responsibilities and rights, best interests of the child
- Maintenance Act 99 of 1998
In practice
The distinctive difficulty in South African family law is the interaction of the three regimes with living customary law. Recognition in 1998 gave customary marriages full legal status, but questions of property, succession and the validity of later civil marriages generated sustained litigation — Gumede, Ramuhovhi and Bhe each struck down discriminatory rules. Practitioners must therefore establish which regime governs a given union, and when, before advising on property or inheritance at all.