The Marriage Act 25 of 1961, the Divorce Act 70 of 1979, and the Dissolution of a Hindu Marriage

• Jurisdiction: South Africa
• Published date: 27 May 2019
• Date: 27 May 2019
• Pages: 452-465
• Citation: (2008) 19 Stell LR 452
• Author: Jacqueline Heaton

452

THE MARRIAGE ACT 25 OF 1961, THE DIVORCE

ACT 70 OF 1979, AND THE DISSOLUTION OF A

HINDU MARRIAGE [DISCUSSION OF SINGH V

RAMPARSAD 2007 3 SA 445 (D)]

Jacqueline Heaton

BLC LLM

Professor, University of South Africa

1 Introduction

South Afr ican law recognises t hree types of marriages, namely civil mar-

riages, customary mar riages and marriages that are civil unions. A civil union

may also be called a civil partnership.1 The choice of whether their civil union

is to be known as a marr iage or a civil par tnership rests with the parties to

the u nion.2 The consequences of the civil union are the same regardless of

whether it is called a mar riage or a civil partnersh ip, and correspond t o those

of a civil marriage.3

Civil marriages mu st comply with the requirements of the common law

and the Mar riage Act 25 of 1961 (“the Marriage Act”), cu stomary marriages

with the requirements of the Recogn ition of Customary Mar riages Act 120 of

1998 (“the Recognition of Customary Mar riages Act”), and marriages (and

civil partnerships) that are civil unions w ith the requirements of the Civil

Union Act 17 of 2006 (“the Civil Union Act”). For the sake of simplication,

and because the consequences of a civil union corres pond to those of a civil

marriage,4 the phrase “civil marriage” wil l be used as a substitute for “civil

marriage or civil u nion” in the remainder of the note.5

1 Ss 1 and 2(a) of the Civil Union Act 17 of 2006.

2 S 11(1).

3 A civil union has the same conse quences as “a ma rriage contem plated in the Ma rriage Act … wit h such

changes as may be requir ed by the context” (s 13(1) of the Civil Union Act 17 of 2006). S 13(2) of the Civil

Union Act fu rther provid es that, with the exception of t he Marriage Act 25 of 1961 and the Re cognition

of Cust omary Marriages Act 120 of 1998, any refer ence to “marriag e in any other law, inclu ding the

common law, include s, with such changes a s may be req uired by the context, a civil union” and a ny

reference to “hu sband, wife or spous e in any other law, includin g the common law, includes a civ il union

partner ”. The end result is th at the consequenc es of a civil union co rrespond to tho se of a civil marr iage.

However, this does n ot mean that a civil u nion is the same as a c ivil marriage or that the Civil Union Act

offers an a lternative met hod for enteri ng into a civil marriage. If the legislatu re intended civ il unions to

be civil ma rriages, it cou ld have insert ed a definit ion in the Mar riage Act that cove red civil union s. The

legislatur e would, fu rthermore, not have afford ed the par ties to a civil union the opport unity of ca lling

their union a civ il partners hip. Moreover, by specific ally stating in s 13(2) of the Civil Unio n Act that the

terms “mar riage”, “husband”, “wife” and “spouse” in the Marr iage Act and the Recognition of Customary

Marriage s Act do not apply to a civil union and the partie s to the union, the legislatu re indicated that civil

unions are ne ither civil nor cust omary marr iages.

4 See n 3 above.

5 A caveat has t o be added: where refere nce is made to solemni sation of a civil marr iage in te rms of the

Marriage Act , it must be borne in mind tha t solemnisation of a civil un ion is regulated by the Civi l Union

Act, not the Mar riage Act.

(2008) 19 Stell LR 452

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