When are you legally married ?
“My husband and I got married 11 years ago. I now want to get divorced, but according to the Department of Home Affairs we have never been married as they cannot find any marriage certificate. How is that possible? Did the minister not register it? What now?”
A marriage can be defined as a legally recognised, life long, voluntary union between two people. In our law civil marriages are acknowledged and regulated by the Marriage Act that sets out the following requirements for the establishment of a civil marriage:
• Both parties must have contractual capacity and have the intention of marrying. This means they must both be 18 years or older. In exceptional circumstances persons younger than 18 years can get married provided that additional requirements are met.
• The parties getting married must be legally able to get married. Parties won’t be able to get married if they are mentally ill and cannot understand the consequences of their actions.
• The parties must be able to enter into a valid marriage. This means that one party may not already be married or fall within a forbidden degree of relation to the other party.
• The marriage ceremony must be solemnised by a registered marriage official which includes amongst others a minister, pastor, magistrate and other special peace officers who are specifically authorised to do so.
• The parties must understand the consequences and legal implications of a marriage.
• The ceremony must take place inside a church, an alternative place used for religious practices or another place such as an office or house with “open doors” – meaning not in secret.
• At least two witnesses must be present.
• Both parties, the marriage official and two witnesses must sign the marriage register.
• At the ceremony the marriage official must hand the parties a handwritten marriage certificate.
• Afterwards, the marriage official has to forward the necessary documents to the Department of Home Affairs to have the marriage registered.
The formal registration of a marriage is not a prerequisite for the existence of a valid marriage between two parties. The marriage may be registered at any point after the solemnisation of the marriage. However, the entry in the register and the handwritten marriage certificate the parties receive serves as the preliminary proof of the marriage’s existence.
In circumstances where no marriage certificate can be found and the marriage has also not been registered, the existence and solemnisation of the marriage can be proved by way of external evidence. Evidence which can be provided to prove the existence of the marriage includes:
• Evidence given by witnesses and the marriage official present at the solemnisation of the marriage, and who can attest to it.
• Evidence that supports one or both of the parties’ intention regarding the solemnisation of the marriage.
• Evidence that there was a marriage ceremony.
• Evidence that the parties are living together / had been living together as husband and wife.
• If possible, a copy of the marriage entry in the marriage register.
Accordingly, in your situation, the following steps can be followed:
Contact the marriage official to get supporting evidence of the solemnisation of the marriage, especially, if possible, a copy of the marriage register. Following that, contact your attorney to bring a court application for a declaratory order that confirms the valid establishment of the marriage (substantiated by the abovementioned proof). After receipt of a declaratory order the marriage can be registered with the Department of Home Affairs.