When are you legally married?

2015-12-02 06:00
ILZE STRYDOM

ILZE STRYDOM

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Question:

MY husband and I got married 11 years ago. I now want to get divorced, but according to the Department of Home Affairs we’ve never been married as they cannot find any marriage certificate. How is that possible? Did the minister not register it? What now?

Answer:

The formal registration of a civil 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 above-mentioned proof). After receipt of a declaratory order the marriage can be registered with the Department of Home Affairs.

  • Ilze Strydom, director, Phatshoane Henney Attorneys

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