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Article written by Pam Black of Celebration House, Cape Town’s unique wedding information centre. First published in Die Burger Leefstyle newspaper May 2008
‘For better, for worse, for richer, for poorer, in sickness and in health…’ These are some of the well-known words of the marriage vows taken by most couples on their wedding day. And, while over the years they have acquired a somewhat romantic gloss, couples often fail to recognise just how life-changing these vows are, and the fact that marriage is a binding contract - a serious, lifelong commitment that two people make to each other.
It perturbs me when I see couples putting all their energy into planning their receptions and living only for the ‘big day’, with scant thought being given to the actual ceremony, or - even more importantly - to their lives together after the honeymoon.
Unlike other agreements they might encounter during the course of their lives, in marriage there is no 30-day ‘cooling-off’ period or money-back guarantee! If it doesn’t work out, the consequences are devastating and costly.
Being a legal agreement, there are certain requirements you will need to attend to before your wedding, to ensure that your marriage will be valid in the eyes of the law. Listed below are some of the questions I am asked most frequently:
Q. Where may I marry?
A. According to the Marriage Act, the ceremony must take place in a church or another building used for religious services, or in a public office (such as the Department of Home Affairs), or a private dwelling. During the service the chosen venue must have ‘open doors’ and the service must be conducted in the presence of the parties themselves and two witnesses (or it will not be regarded as legal).
Q. Whom may I have as witnesses?
A. Any person who is present at the ceremony may sign the register as a witness, providing they are 16 years or over. However, it is also necessary for your two witnesses to produce either their South African identity documents, or – for folk not resident in South Africa – their passports, as this information is required for the Marriage Register.
Q. May I marry outside in a garden?
A. If you plan to marry in a garden or on a beach, it is best to repeat the legal part of the service indoors, so as to avoid any doubts about whether you are formally married or not. The same applies to marrying in a restaurant or any other building not defined by the Act. However, as long as your marriage is solemnized by a competent Marriage Officer, the courts are not readily inclined to declare a marriage invalid simply because it was held in the wrong place.
Q. Are there any specifications regarding the time I may marry?
A. The short answer is that as long as you can find a competent Marriage Officer willing to accommodate you, 24/7 and 365 are permissible. There is nothing to stop you marrying at midnight on a Sunday, if that’s what you want!
Q. What is an Antenuptial Contract (ANC)?
A. An ANC is a document that is signed prior to the marriage service and which sets out the agreement between the parties to the effect that they will be married out of community of property. It deals with their rights and obligations regarding their assets and liabilities, and also stipulates whether or not the accrual system will apply.
In general terms, if you are married by ANC without accrual, what is yours at the start of the marriage and what you acquire with your income during the marriage, will be yours exclusively. Under the accrual system, however, what you bring in to the marriage remains yours, but what the two of you accumulate during the marriage is effectively shared 50/50 when the marriage ends, either through death or divorce.
It is very important to remember that the contract must be signed before the wedding. If you decide after the ceremony that you would prefer to have an ANC, you will require an application to the High Court, which is very costly. In addition, you will be required to produce a valid reason as to why you did not conclude an ANC before your marriage.
Q. What does ‘in community of property’ mean?
A. In the absence of an ANC, South African marriages are automatically in community of property, which means that everything owned by you and your spouse at the time of your marriage, and everything acquired thereafter, will be owned jointly Over the years I have met many couples who refuse to have an ANC on the basis that a) they are never going to divorce and b)they plan always to share everything. This may sound very romantic, but it is not only your assets that are jointly owned – you are also liable for each other’s debts.
The last thing you want to do is to put your family home at risk, yet couples who mary without an antenuptial contract often fail to grasp that this is just what could happen if one of them should decide to launch a business venture which fails, because at the end of the day they will both be liable for any debts incurred. At the beginning of your marriage you may have no plans to start your own business, but who knows what might happen ten years hence?
Q. Do couples undertaking a Civil Union Marriage require an ANC?
A. As with heterosexual marriages, unless the couple enters into an antenuptial agreement prior to marriage, their marriage will be deemed to be ‘in community of property’. This in effect means that the partners are jointly and severally liable for the debts of the joint estate. Another good reason to consider having an antenuptial agreement drawn up before the union – and a fact that is sometimes overlooked – is that partners whose marriages are ‘in community of property’ will be unable to purchase immovable property, or items like cars on instalment sale agreements etc. without the consent of the other partner. This can become a contentious issue if the partners are used to being independent and are accustomed to signing legal agreements on their own.
At Celebration House we are focusing on the legalities of marriage this month and on our website, www.celebrationhouse.co.za, we are offering one lucky couple the chance to win an ANC from attorneys Catto Neethling Wiid.
Celebration House is a resource centre situated in Claremont (near Cavendish Square), where we offer free advice on all aspects of planning a wedding. There is no need to make an appointment.
Celebration House, 14 Protea Road, Claremont. Tel: 021-674-7350
(The above information is an excerpt from The really useful WEDDING BOOK for South Africa by Pam Black.)
