Marriage Law and Sexual Ethics in South Africa

Before the implementation of the Law on Recognition of Customary Marriages, there were a large number of customary marriages in South Africa. Because a man can have multiple wives in common law marriage, these marriages are usually considered immoral, so common law marriage was not recognized by South African law before. Despite this, there are still many indigenous people in South Africa who marry according to customary law. The direct consequence of South African law's failure to recognize common law marriage is that the interests of both parties, especially women, are greatly affected. For example, before South Africa passed legislation to recognize common law marriage, women married under common law had the same status as minor children. Legally speaking, she can't sue and respond in her own name, but her husband can only sue and respond on her behalf; If she needs to sue her husband, she must apply to the court to appoint a person to sue on her behalf; She can't conclude a contract; She can't own marital property; She has no custody of her children, even after her husband's death; She has no obligation to raise children, which shall be borne by her husband, and shall be borne by her husband's heir after his death; She cannot inherit her husband's property. Obviously, women in common-law marriages are greatly discriminated against, which violates the Constitution of the Republic of South Africa 1996. [1] In order to improve the status of women in common law marriage, it is necessary to give full legal recognition to common law marriage. Therefore, South Africa promulgated the Law on Recognition of Common Law Marriage in June165438+1October 65438+May 2000.

The significance of the Recognition of Customary Marriages Act is that all marriages contracted under South African customary law can now be registered and legally recognized under the Act. This law gives full legal recognition to monogamous or polygamous common law marriages, and it also stipulates that both parties who are married according to common law have equal status and ability, and both husband and wife enjoy full legal status. For example, the status of women in common law marriage is very different now, and they can sue and respond in their own name; She no longer asks the court for permission to sue her husband, nor does she need others to sue her husband in her name; She can sign a contract; She can own property, including marital property; She and her husband have joint custody of the children, and after her husband's death, she is the sole guardian of the children; She and her husband have the same obligation to raise their children; She can inherit her late husband's property. It is not difficult to see that the Law on Recognition of Common Law Marriage has greatly improved the status of women in common law marriage. This paper briefly introduces some main provisions of the law.

I. Relevant definitions

"Customary marriage" in the Law on the Recognition of Customary Marriage refers to "marriage concluded according to customary law". [2] "Customary law" refers to "the customs and practices traditionally followed by African indigenous people in South Africa and have become part of their culture". [3] Customary marriage does not include marriages concluded according to Hindu, Muslim or other religious ceremonies.

Second, recognize common law marriage.

Article 2 of the Law on the Recognition of Customary Marriages stipulates that if a marriage is valid according to customary law and still exists at the time of the implementation of the law, it shall be regarded as a marriage for all purposes; A common law marriage concluded after the implementation of this Law shall be regarded as a marriage under any circumstances if it meets the requirements of this Law; If a person is the spouse of more than one common law marriage, all valid common law marriages concluded before the implementation of this law shall be regarded as marriages in all cases; If a person is the spouse of more than one common law marriage, all these marriages concluded after the implementation of the law shall be regarded as marriages in all cases if they meet the provisions of the law. [4]

Three. Requirements for the Validity of Common Law Marriage

According to the Law on Recognition of Common Law Marriages, a common law marriage concluded after the implementation of this law is considered valid only if it meets the following requirements:

1. Marriage must be negotiated, concluded or held according to customary law;

2. Both husband and wife in the future must be 18 years old or older;

Future spouses must agree to get married according to common law. [5]

If one spouse is a minor, his legal guardian must agree to get married when his parents or parents are absent; If parents or legal guardians do not agree to get married, they can ask the child welfare Commissioner for permission. If parents or legal guardians or child welfare commissioners do not agree to marriage, only judges of the High Court of South Africa can consider approving marriage. [6]

Although it is stipulated that "both spouses in the future must be over 65-438 +08 years old", South Africa's Minister of the Interior or any public agency official designated by him in writing may authorize people aged 65-438+under 08 to enter into a common law marriage in writing, if the Minister of the Interior or an official designated by him thinks that such marriage is appropriate and in the interests of all parties concerned. This written permission cannot exempt both parties from the obligation to comply with other requirements stipulated in the Law on Recognition of Customary Marriage. If a person under the age of 18 enters into a common law marriage without the written permission of the Minister of the Interior or an official designated by him, then if the Minister of the Interior or an official designated by him thinks that the marriage is appropriate and in line with the interests of both parties, and the marriage otherwise conforms to the legal provisions on the recognition of common law marriage, the marriage can be declared as a valid common law marriage in writing. [7]

Common law prohibits common law marriages between people caused by blood or kinship. [8]

Four. Registration of Common Law Marriage

The Law on Recognition of Common Law Marriages stipulates that both spouses of common law marriages are obliged to ensure that their marriages are registered. Either spouse can apply to the registrar for registration of their common law marriage in the prescribed form, and must provide the registrar with the prescribed information and other information required by the registrar to convince himself of the existence of common law marriage. [9]

The Law on Recognition of Common Law Marriages stipulates two ways of registration: first, if a common law marriage concluded before the implementation of this law is not registered according to any other law, it must be registered within 12 months after the implementation of this law or within a longer period specified by the Ministry of the Interior in the form of official gazette notice; Second, a common law marriage concluded after the implementation of the law must be registered within three months after the marriage is concluded or within a longer period stipulated by the Ministry of the Interior in the form of a notice in the official gazette. [ 10]

If the registrar is convinced that both spouses have entered into a valid common law marriage, he must register the marriage by recording the identity of both spouses, the date of marriage, any bride price agreed by both parties [1 1] and any other specific matters. After registration, the registrar must issue a registration certificate to both spouses, which records the specific matters. [ 12]

If a common-law marriage is not registered for some reason, anyone who convinces the registrar that he/she has sufficient interests in this matter can apply to the registrar in a prescribed way to investigate the existence of the marriage. If the registrar is convinced that there is or has been a valid common law marriage between spouses, he must register the marriage and issue a registration certificate in accordance with article 4, paragraph 4. If the registrar is not sure whether there is a valid common law marriage between spouses, he must refuse to register the marriage. [ 13]

The court [14] may, after receiving the application submitted to it, order the registrar to register the common-law marriage or cancel or change the registration of the common-law marriage based on the investigation conducted by the court. [ 15]

According to Article 4 of the Law on Recognition of Customary Marriage or other provisions, the registration certificate with customary marriage registration issued by law constitutes the preliminary evidence of the existence of customary marriage and the specific matters recorded in the registration certificate. Unregistered common law marriage does not affect the validity of marriage. [ 16]

Verb (abbreviation of verb) Determination of the age of minors

Regarding whether a person is a minor, the registration officer may use the person's birth certificate, identity card, sworn testimony of the person's parents or relatives, and other evidence that the registration officer deems appropriate to find out the person's age. The registrar may also refer the matter to the local court established under the South African District Court Act in a prescribed manner, and the court must determine the age of the person and issue the prescribed documents as preliminary evidence of the age of the person. [ 17]

Six, the equal status and ability of both spouses

Article 6 of the Law on Recognition of Common Law Marriage stipulates that a wife in a common law marriage has full status and capacity on the basis of equality with her husband, and is bound by the marital property system governing marriage, including the ability to acquire and dispose of property, conclude contracts and conduct litigation. At the same time, this does not affect any other rights and powers she enjoys under customary law.

Seven, the property consequences of common law marriage and the contracting ability of husband and wife.

The property consequences of customary marriages concluded before the implementation of the Law on Recognition of Customary Marriages are still governed by customary laws. A common law marriage concluded after the implementation of this Law, if one spouse is not a party to other existing common law marriages, is a marriage with the same property, and both spouses * * * enjoy the benefits and * * * bear the losses, unless the spouses explicitly exclude this consequence in the prenuptial contract that stipulates their marital property system. If a common-law marriage is a common-law marriage with the same property, Chapter III Articles 18, 19 and 20 and Chapter IV Article 24 of the South African Marriage Property Act apply to the marriage. [ 18]

Spouses of common-law marriages concluded before the implementation of the Law on Recognition of Common-law Marriages may * * apply to the court for permission to change the property system applicable to their marriage, if the court is satisfied that: 1) there are sufficient reasons to make changes; 2) There is sufficient written notice to inform both spouses of all creditors whose debts exceed 500 rand (South African monetary unit) or a certain amount determined by the Minister of Justice in the form of notice in the official gazette; 3) No one will be harmed by this change. The court can order that the marital property system applicable to this marriage is no longer applicable, and authorize both parties to sign a written contract to adjust their future marital property system according to the conditions determined by the court. When the husband is the spouse of more than one common law marriage, all persons who have a full interest in the matter, especially the existing spouse of the applicant, must participate in the procedure. [ 19]

After the implementation of this law, if a husband in a common-law marriage wishes to conclude another common-law marriage with another woman, he must apply to the court for approval of a written contract that will adjust his marital property system. When considering the application, the court must: 1)(a) terminate the marital property system applicable to the marriage if the marriage has property; And (bb) division of marital property; (b) Equitable distribution of property; (c) Consider all relevant information about the family groups that will be affected after the application is approved; 2) The court may: (a) allow further modification of the contract terms; (b) order the approval of the contract having regard to any circumstances that it considers just; (c) If it is considered that the interests of either party under this contract cannot be fully guaranteed, the application shall be rejected. Everyone who has a complete interest in this matter, especially the current spouse and future spouse of the applicant, must participate in this procedure. If the court approves the application, the registrar or clerk of the court must provide both spouses with a court ruling, including a certified copy of the contract, and must also send the ruling and a certified copy of the contract to every contract registrar in the court area. [20]

Eight. Dissolution of common law marriage

Common law marriage can only be dissolved by the court in the form of divorce order on the grounds of marriage breakdown and irretrievability. If the court is convinced that the marriage relationship between the parties has no reasonable hope of restoring normal marriage relationship, it can issue a divorce order on the grounds that the marriage has broken down and cannot be restored. [2 1] South Africa's Mediation Law for Certain Divorce Cases and Article 6 of the Divorce Law are applicable to the dissolution of common-law marriages. The court that issued the order to dissolve the common-law marriage: 1) has the power stipulated in Articles 7, 8, 9, 10 of the Divorce Law and Article 24, Paragraph 1 of the Husband and Wife Property Law; 2) If the husband is the spouse of more than one common-law marriage, all relevant circumstances must be considered, including any contract, agreement or ruling made according to Article 7, paragraphs 4, 5, 6 and 7, and any ruling it deems just must be made; 3) Any court may rule that any person with sufficient interest in the matter participates in the procedure; 4) To decide on the custody of any minor in the marriage; 5) When making a ruling on alimony, you can consider any provisions or arrangements made according to the common law. [22] Nothing in Article 8 shall be interpreted as limiting the mediation role of any person recognized by common law, including any traditional leader, in any dispute or any event that occurred before the court dissolved the common law marriage. [23]

Nine. Changes in the marriage system

There is a common law marriage between a man and a woman. If they are not spouses of other existing common law marriages, they can enter into a civil marriage according to the Marriage Law [24]. According to this regulation, the marriage is a property marriage, and both parties * * * enjoy the benefits and * * * bear the losses, unless the consequences are explicitly excluded in the prenuptial contract. Spouses in a common-law marriage can conclude a civil marriage according to the Marriage Law, thus transforming a common-law marriage into a civil marriage, while spouses who conclude a civil marriage according to the Marriage Law may not conclude any other marriage during the marriage. [25]

X. regulation

Article 1 1 of the Law on the Recognition of Customary Marriages stipulates that the Minister of Justice and the Minister of the Interior may, after consultation, make the following relevant provisions: 1) Requirements that must be met when registering a customary marriage and information provided to the registrar; 2) the way the registrar determines whether there is a common law marriage; 3) Anyone, including any traditional leader, can provide evidence to prove the existence of common law marriage; 4) Contents and forms of relevant certificates, notices, testimonies and announcements required by this Law; 5) Keeping, authenticating, executing, modifying, copying and disposing of any documents related to common law marriage registration; 6) Matters specified in this Law; 7) Any other matters necessary for the effective registration of common law marriages. In addition, the Minister of Justice may prescribe the fees for the registration of common-law marriages and the issuance of any certificates related to common-law marriages. Any of the above provisions must be submitted to the South African Parliament before they can be published in the official gazette. Any of the above provisions concerning the payment of fees must also be worked out in consultation with the Minister of Finance.

XI。 Amendment and abolition of laws

Article 12 of the Marriage Law on Recognition of Common Law amended the relevant provisions of the Contract Registration Law, and article 13 abolished the relevant provisions in some laws that were in conflict with or overlapped with this Law.

To annotate ...

[1] For example, Article 9 of the Constitution of the Republic of South Africa stipulates: "(1) Everyone is equal before the law, and everyone has the right to equal protection by law and enjoy the rights and interests stipulated by law. (3) The state cannot directly or indirectly unfairly discriminate against anyone for one or more reasons, including race, sex, pregnancy, marital status, family or social origin, skin color, sexual orientation, age, disability, religion, moral sense, belief, culture, language and origin. (4) No one shall directly or indirectly unfairly discriminate against any person on one or more of the grounds in subsection (3). National laws must be made to prevent or prohibit unfair discrimination. ……"