This essay seeks to argue that the marriage act 2014 not only violates kenyas obligation under international law but also violates the constitution of kenya 2010 article 274, which. The adoption of the civil union act1 by south africas parliament in late 2006 could easily be seen as the inevitable culmination of a long, legal and politi cal struggle for the emancipation of gay men and lesbians in south africa. This form of law was first brought to africa by the european colonisers. All marriages in south africa are automatically in community of property. The act banned marriages between europeans and noneuropeans, which, in the language of the time, meant that white people could not marry people of other races. The prohibition of mixed marriages act in south africa.
The prohibition of mixed marriages act, act no 55 of 1949, was an apartheid law in south africa that prohibited marriages between europeans and noneuropeans. A man in south africa may have more than one spouse but a south african woman may only have one spouse. Marriage data in south africa civil marriages are administered through the marriage act, 1961 act no. Despite the act being in operation for over 11 years, confusion still exists regarding registration of a customary marriage, as evidenced by the number of queries. Section 1a of the constitution provide for the values on which the sovereign democratic state is founded, such as human dignity, the advancement of equality, human rights and freedoms. South africa abrogated laws criminalizing homosexual conduct, including the commonlaw crime of sodomy, and legalized samesex sexual activity in 1998. Ministers to be registrars 1 for the purposes of this act, the minister may appoint ministers to be registrars. Customary marriages are governed by the recognition of customary marriages act, 1998 act no. To amend the marriage act, 1961 so as to insert certain definitions. Included in sahas virtual exhibition tracing the unbreakable thread. Pdf african customary marriages in south africa and the. During the year 2011 a total of 173,215 new marriages were recorded. Registering your marriage in south africa religion, custom. Read sections 24 to 26 of the marriage act for more details.
The recognition of customary marriages in south africa. Subsequent legislation, especially the population registration and immorality acts of 1950, facilitated its. And whereas section 6 of the constitution of the republic of south africa, 1996, provides for 11 official languages of south africa. This is the law which the courts have developed over many years, case by case. Prohibition of mixed marriages act, act no 55 of 1949 saha. It does not deal with the dissolution of marriages, which is governed by the divorce act, 1979, or with matrimonial property regimes and the financial consequences of marriage, which are governed by the matrimonial property act, 1984. Dissolution of marriages on presumption of death act 31 of 1993. A person can get married in terms of a civil marriage, customary marriage, civil union or religious marriage. Box 4384400100, nairobi, kenya abstract it is the opinion consensuses of a few scholars that the institution of marriage has continued to. This mix is also evident in south africas marriage laws which can roughly be divided into two categories, viz.
South african law, european in origin, had to incorporate the laws and. A religious marriage is not recognised as a legal marriage under south african law, but the spouses in a religious marriage are protected by law in certain instances. Interpretation in this act, except where the context otherwise requires district means a marriage district constituted under this act. South africa, declares the preamble to south africas 1996 constitution, belongs to all who live in it, united in our diversity.
Thus, if you dont draw up a contract before your marriage it will be considered to be one that is in community of property. This act defines customary marriage as a marriage concluded in accordance with. Cape town it is said that nearly half of all marriages in south africa end in divorce. Masculinity and gender in southern african studies, journal of southern african studies, 24, 4, 605630. Marriage in south africa exists in a number of different forms, as a result of the diversity of religions and cultures in the country.
In 2000 south africa ratified the african charter on the rights and welfare of the child, including article 21 regarding the prohibition of child marriage. This act puts black civil marriages on the same footing as those of the rest of the population of south africa. Cohabitation, marriage and remarriage patterns in africa. The members of the south african law reform commission are.
For the first time in south africa every person could claim equality before the law and equal protection by the law. Muslim marriages in south africa get the long deserving full recognition by nicolene schoeman louw on june, 2014 in news over the years south african courts have been faced with complex issues regarding the legal status of marriages solemnized in terms of muslim rites and even more so, when it came to the rights and recognition of spouses. The marriage act only provides for monogamous oppositesex marriages. This essay seeks to argue that the marriage act 2014 not only violates kenyas obligation under international law but also violates the constitution of. Be it enacted by the queens most excellent majesty, the senate and the house of assembly of the union of south africa, as follows. Marriage act an act to make provisions for the celebration of marriages. Marriage act 25 of 1961 sa sa gg 6670 came into force in south west africa on 1 february 1972 when the amendments made by act 51 of 1970, including the insertion of section 39a, were brought into force by rsa proc. Page 1 of 20 1 october 1992 to date this is the current version and applies as from 1 october 1992 to date, i. Marriage amendment act, 1968 wikisource, the free online. The law recognises your customary marriage if you and your spouse are both older than 18. Act to consolidate and amend the laws relating to the solemnization of marriages and matters incidental thereto. Feb 23, 2017 read sections 24 to 26 of the marriage act for more details. The married persons equality act applies to these hybrid marriages.
Thousands of protestors were subjected to police brutality, but the people suffered without retaliating. We are the leading resource for freely available legislation in south africa and are used daily by thousands of professionals and industry leaders. In 1949 mixed marriages were banned and the immorality act became the first major piece of apartheid legislation. South africa signed a j oint statementat the 2014 human rights council calling for a resolution on child marriage. South africa have focused on gender roles and relations in order to address the major gender challenges facing south africa today, notably the high levels of violence and the rapid spread of 1 morrell r 1998 of boys and men. For instance, south africa has the highest incidence of hivaids in the. According to south african common law before 2002, a marriage was regarded as a voluntary institution. For the purposes of the present study unit, all you need to know in respect of the capacity to act on pages 15 to 18 of the textbook is the effect of prodigality, mental illness, placement under curatorship due to a disability. Historically the legal definition of marriage, derived from the romandutch law, was limited to monogamous marriages between oppositesex couples. The recognition of customary marriages act, 120 of 1998 rcma, that came into operation on 15 november 2000, gives full legal recognition to customary marriages in south africa.
Prior to 1998, the marriage act of 1961 was the only law which provided for recognition of marriage as defined by the south african legal system. The problem namibia inherited romandutch common law from south africa at independence. This work is in the public domain because it was created and first published in south africa and it is an official text of a legislative, administrative or legal nature, or an official translation of such a text. Such marriages entered into after the commencement of the act are automatically governed by a community property regime, rather than by separation. Registering your marriage in south africa religion. It was among the first pieces of apartheid legislation to be passed following the national partys rise to power in 1948. Acts online provides legislation, including amendments and regulations, in an intuitive, online format. The doctrine of apartheid espoused the separation of every race and nation so that each would develop to the fullest along its own inherent lines. Customary law v common law marriages african law report.
Be it enacted by the parliament of the republic of south africa, as follows. The constitutional court in the case, gumede v president of the republic of south africa recognised that the introduction of the recognition of customary marriages act 120 of 1998 rcma was a monumental step in addressing gendered inequality within marriage, and the marital power of the husband, by providing for equality between spouses. Lobola is a centuryold marriage tradition, still common throughout africa. With acts you are guaranteed the latest and most up to date resource for your legislative needs.
To amend sections 16, 19, 22 and 29 of the marriage act, 1961, so as to provide that a notice of intention to marry published in a country outside the republic or a special marriage licence issued in the territory of southwest africa shall be regarded as having been published or issued in the republic. In this act, unless the context otherwise indicates i magistrate includes an additional and an assistant magistrate. Although many members of the official up opposition was against the. South africans can choose to get married in terms of customary law, religious rites, or in a. A reflection on the african traditional values of marriage and sexuality dr. South africa has committed to eliminate child, early and forced marriage by 2030 in line with target 5. Marriage act 25 of 1961 could not undo a customary marriage. Modern traditional marriage and matrimonial regimes.
Marriage law south africa quicklaw guide legalwise. There are three different laws under which a marriage may be formed in south africa. Republic of south africa civil union bill as presented by the portfolio committee on home affairs national assembly the english text is the off. Unfortunately divorce usually goes hand in hand with great unhappiness about the way in which the assets the two parties have built up over the years should be divided. Pdf law forms one of the major structural contexts within which family lives play out, yet the precise dynamics connecting these two. The prohibition of mixed marriages act no 55 of 1949 commenced 8 july 1949 forbade marriages between whites and other races. Short title this act may be cited as the marriage act. Divorce act, 1979 act no 70 of 1979 divorce act, 1979 act no 70 of 1979. Jun, 2014 muslim marriages in south africa get the long deserving full recognition by nicolene schoeman louw on june, 2014 in news over the years south african courts have been faced with complex issues regarding the legal status of marriages solemnized in terms of muslim rites and even more so, when it came to the rights and recognition of spouses. Customary marriages became legally recognised and protected in south africa when the recognition of customary marriages act 120 of 1998 the act came into force in november 2000. Ukuthwala, a custom practised by the nguni groups of south africa, seems to have created some uncertainty about the legal position in respect of forced child marriages in south africa. Marriages conducted in terms of the transkei marriage act. All persons getting married in south africa are subject to the legislation of the marriage act, 1961 act.
May 28, 2011 this act shall be called the marriage amendment act, 1968. South africans can choose to get married in terms of customary law, religious rites, or in a civil or church marriage. Meaning of mixed marriage white south africans by law could no marry blacks or any of the other ethnic groups in south africa. In this act, unless the context otherwise indicates. In south africa there is a myth that, if you are not married, but living with cohabiting your partner for a certain amount of time, it translates into a common law marriage by default. This system requires that a price be paid for the right to marry a woman. A reflection on the african traditional values of marriage. A religious marriage is not recognised as a legal marriage under south african law, but the spouses in a religious marriage are.
Recognition of customary marriages act 120 of 1998 the recognition act. This was especially through the equality clauses and the equality act. Marriage act, 1961 wikisource, the free online library. Constitution of the republic of south africa, 1996 the constitution. In 19, when hindu and muslim marriages in south africa were declared invalid, gandhi saw a way to widen. The marriage act, 1961, which allows for the solemnisation of. Such marriages entered into after the commencement of the act are automatically governed by a community property regime, rather than. A perspective on marriages and civil unions in south. Prohibition of mixed marriages act, 1949 wikipedia. In south africa, there are several ways of getting married, depending on religion, custom or tradition. In 2004 south africa ratified the african charter on human and peoples rights on the rights of women in africa, including article 6. Marriage and matrimonial property law amendment act no.
The act further provides in section 73 that if one suffers from recurrent bouts of insanity then the partner is allowed to have the marriage annulled. Definitions in this act, unless the context otherwise indicates. Courts amendment act 31 of 2008, a provision which will be put into operation by proclamation. Registration of customary marriages still creates confusion. This practice is still used extensively in contemporary african society and has raised both critical and supportive voices.
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