Preparing to get married under the Marriage Act
If you wish to get married, you must:
• ensure that you are legally allowed to marry;
• understand the legal consequences of a marriage, particularly that marriages in South Africa are automatically in community of property, unless a valid antenuptial contract has been entered into before the marriage; and
• ensure sure that your marriage will comply with all the legal requirements for a valid marriage.
Due to the large number of fraudulent and illegal marriages reported to the Department of Home Affairs each year, it is imperative for you to confirm your marital status at any time.
- eHomeAffairs Portal: You can create a profile on the official eHomeAffairs portal using your ID number. Once logged in, you can view certain personal details pulled from the National Population Register, which often includes your recorded marital status.
- SMS Service: You can still verify your status via your mobile phone by texting the letter M followed by your ID number (e.g., M 8001015000080) to 32551. You should receive a reply confirming your status and marriage date if applicable. A fee of R1.00 per SMS usually applies.
- DHA Contact Centre: You can call the toll-free hotline at 0800 60 11 90 to speak with an agent who can verify the status recorded against your ID number.
- Physical Branch Visit: For formal, printed proof (often required by banks or for legal proceedings), you must visit a local Home Affairs office and request a "marital status printout".
What documents do you need to supply?
On the day of the wedding, the couple must submit the following documents to the person officiating at the wedding:
Identity documents (for each person getting married);
• if a foreign national is marrying a South African citizen, they must both present their valid passports, as well as a completed Declaration for the Purpose of Marriage, Letter of No Impediment;
• if the wedding is for a minor (a person under the age of 18 years), written consent of either both the parents/legal guardian or a Commissioner of Child Welfare OR the Minister of Home Affairs or a judge must be submitted. If the minors getting married are under the ages of 18 years for boys or 15 years for girls, written consent from the Minister of Home Affairs is also required;
• if any of the persons getting married are divorced, then the final decree of divorce must be furnished; and
• if any of the persons getting married are widowed, the deceased spouse’s death certificate must be submitted.
Marriage officers
Only marriage officers authorised in terms of the Marriage Act to perform marriages may do so. In addition to a marriage officer, the marriage must be conducted in the presence of at least two witnesses
• in a church or another building used for religious services;
• in a public office or private house, with open doors; or
• in the case of serious illness or injuries, in a hospital or any concerned facility.
In terms of the Marriage Act, the following persons may conduct civil marriages:
• Every magistrate, special justice of the peace and commissioner, in the territory or other area in respect of which, and for as long as he or she holds office.
• Any other officers or employees in the public service or the diplomatic or consular service of South Africa, whom the Minister of Home Affairs, or any officer in the public service authorised to do so, has designated as marriage officers by virtue of their office. A marriage officer of this class may have a general authority to perform marriages, or an authority limited to a particular group or class of persons or country or region.
• Any minister of religion or any person holding a responsible position in any religious denomination or organisation, who has been designated to perform marriages by the Minister of Home Affairs or an officer in the public service authorised by him/her according to Christian, Jewish or Muslim rites, or the rites of any Indian religion. A pastor’s authority may be limited to the solemnisation of marriages within a specified area or for a specific period.
Registration of the marriage
The couple, the two witnesses and the marriage officer must sign the marriage register immediately after the solemnisation of the marriage. Then the marriage officer must issue the parties with a handwritten marriage certificate free of charge. The marriage officer must then 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. Non-fulfilment of these requirements does not affect the validity of the marriage and registration of the marriage can be affected postnuptially. A duly signed marriage certificate serves as prima facie proof of the existence of the marriage. In the absence of a marriage certificate, the existence of the marriage may still be proved by other evidence.
Recognition of foreign marriages
A marriage concluded outside the borders of South Africa will only be valid if it was concluded in terms of the formalities of the jurisdiction where the marriage was concluded.
Antenuptial Contracts
Your Antenuptial Contract (“ANC”) is the most important documents you will sign in your lifetime. It is not a standard, pre-printed form which you can download off the internet! This can be an expensive misunderstanding. Failure to sign and conclude an antenuptial contract BEFORE you get married makes your marriage regime automatically IN community of property.
An attorney must assist in the drafting of an antenuptial contract.
Three matrimonial property regimes apply in South Africa:-
MARRIAGE IN COMMUNITY OF PROPERTY
This applies automatically where parties do not conclude an ANC. All assets and liabilities of spouses married in community, whether acquired before or during the marriage, fall within one joint estate. Although this is the truest form of sharing, it is commercially seldom viable as the entire joint estate is at risk of attachment by creditors, and the parties’ individual contractual capacity is usually limited. Individual ownership of assets and individual liability for debts is not possible.
MARRIAGE OUT OF COMMUNITY OF PROPERTY
This is achieved by concluding an ANC. Each party has, and maintains, a completely separate estate. Each spouse has and retains absolute independence of contractual capacity, and each party’s assets are protected against claims by the other party’s creditors. Each is liable for his or her own debt. There is no provision for sharing.
MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH INCLUSION OF THE ACCRUAL SYSTEM
The Matrimonial Property Act 88 of 1984 introduced the accrual system, devised to facilitate a form of sharing whilst each party retains their own separate estates and their contractual independence. Each spouse retains their own estate and may accumulate assets and incur liabilities without interference from or assistance of the other. The estate of each party is determinable separately from that of the other party. At dissolution of the marriage, each party’s estate is calculated by determining all assets, determining all liabilities, subtracting liabilities from assets and arriving at a nett asset value.
It is possible to provide for exclusions from this sharing:
In the ANC the parties may exclude certain assets from the sharing.
For an asset to be excluded it must be properly described.
Parties not wishing to specifically exclude assets (often wise if the assets may not still be in existence at dissolution of the marriage) may exclude a certain sum of money which is the agreed equivalent of assets which they do not wish to share (the "commencement value"). This sum will be updated to its equivalent value at the date of dissolution.
Excluding either a specific asset, or a commencement value, or both (which must be separate and not derived from the same asset), ensures that spouses share only what they choose to share.
Anything not excluded, and which is in the estate of either party at date of dissolution, whenever it was acquired, is included in the calculation of the estate of the party who owns or owes it.
The antenuptial contract will operate on death or divorce.
If you plan to get married it is please consult a reputable experienced family attorney, discuss your own specific requirements and ensure that you fully comprehend and understand the available options and the impact of your choice on your assets at divorce or death.
An ANC must be signed before the marriage ceremony is concluded and in the presence of a notary and two competent witnesses. The notary will register the contract in the local registry of deeds. The ANC must be registered within 3 months of the date of the marriage at the Deeds Office.
Muslim marriages officiated in terms of South African law
Formal Legal Recognition: As of May 2024, President Cyril Ramaphosa signed the Divorce Amendment Act 1 of 2024 into law. This Act officially inserts a definition for "Muslim marriage" into South African law, meaning these marriages are no longer "unrecognised".
Automatic Protection: Spouses in Muslim marriages no longer need to have a separate civil ceremony to be protected. The new law explicitly provides for:
The redistribution of assets upon divorce.
The forfeiture of patrimonial benefits.
Statutory protection for children born from these marriages.
Marriage Certificates: Since October 2024, the Department of Home Affairs has begun issuing official marriage certificates for Muslim marriages (Nikahs), which are recorded on the National Population Register.
Equality for Imams: As of March 2026, the Department of Home Affairs removed the unequal five-year renewal requirement for Muslim marriage officers. They are now recognised on the same permanent basis as religious officers from other faiths.
Useful Information:
Download the digital brochure - The Legal Implications of Saying 'I Do' - open the PFD and save the Brochure! The information provided is really useful, and easy to print for you to read through later!
