The questions I ask every couple getting legally married in South Africa

Without question, my favourite part of being a marriage officer is to hold space for beautiful loves and beautiful couples. It is, after all, one of the most important and happy days of their lives. Sometimes it’s just the two of them, their witnesses and I. Sometimes it’s the two of them and their closest 150 or so friends and family.

Regardless of how big or small the celebration, I consider it the greatest honour to marry couples, whether that be a quick and easy legal marriage in my home (or theirs); an intimate ceremony in one of Cape Town’s magnificent landscapes; or a grand hooray at a wine estate or somewhere just as extraordinary. Whatever the case, in my discussions with couples, I usually start with three important questions. Fair warning: These questions aren’t romantic or profound (that comes later) but they are practical and important. Let’s get to that first question ….

Are you and your partner South African citizens or permanent residents, with up-to-date SA IDs?

If the answer to this is yes. If one or both of you are foreign then we need to meet certain other requirements to get you married. I’ll cover this in another blog. For the SA citizens/residents, you can send me electronic copies of your IDs and bring your physical IDs on the day of your marriage.

NOTE: You don’t have to commission the copies because one of the perks of being a marriage officer is that I’m a commissioner of oaths. (As an aside, you’ll also be selecting two witnesses and I’ll need electronic copies of their IDs (if SA citizens) or passports (if foreign). Please let me know to bring these documents on the day of your marriage.

I always feel a little bad asking the next question because the last thing I want is for you to contemplate a previous marriage in the excitement in the lead up to marrying your love but, like I said above, it’s necessary and important. And, so, I have to ask:

Have either of you or both been married before?

If the answer is no, we can move to the next question.

If you have been married before, we need to file a divorce decree I lodge your marriage. You also need to send an sms to the number 32551 with an M followed by your ID number (only if you’re a SA citizen or permanent resident holder, of course). Don’t put a space between the M and your ID, so, for example, it would be M8601090225083. You should receive an automatic response from this Home Affairs service confirming your marital status as SINGLE, DIVORCED or MARRIED.

You may be wondering why this is important? I mean, you have the divorce decree so isn’t that proof enough that you’re divorced and can now marry your love?! Unfortunately, it’s not always the case. Unbeknownst to many, the court system and our home affairs system are not connected. A court order confirming your divorced status does not result in Home Affairs updating its system on their side. This can result in having a divorce decree but still being recorded as MARRIED at home affairs.

What now? You need to go into home affairs with your ID, a copy of it as well as your divorce decree and ask them to update their system to reflect your true status of DIVORCED. Here’s the really tricky part: marital statuses are only updated in Pretoria. If you ask a Home Affairs in Cape Town to change your status, it in turn sends the request through to Pretoria and there is a big lag time. Someone can wait up to a year for their status to change from MARRIED to DIVORCED. I know that seems like a very long time – it is! – but don’t shoot the messenger.

The slightly better news is that we can proceed to legally marry you with the caveat that we have to wait for your status to change from MARRIED to DIVORCED before lodging your marriage at Home Affairs. Practically that means you’ll need to keep checking your status and once it changes, you give me the signal and only then will I go to Home Affairs and lodge your marriage for them to register.

Unfortunately, the issue I’ve just described is quite a common problem. Many individuals presume that their lawyer will ensure their status is correctly reflected at Home Affairs or they presume the court records are connected to Home Affairs. Accordingly, it is best to check your marital status before we begin the process of discussing your marriage and wedding so we know what we’re dealing with. It’s also, of course, a good idea for those that have been divorced (and perhaps haven’t yet met the love of their life yet) to check their marital status is correctly reflected at Home Affairs so they won’t have to deal with this headache when they do meet their love (and you will!).

For those couples that do have to go through this ordeal, there is some reprieve in the fact that the date of your legal marriage will be reflected as the date we perform the ceremony. So, for example, say you got married on 20 February 2019 and, worst case scenario, had to wait until say February 2020 for your status at Home Affairs to change from MARRIED to DIVORCED. I pick up the baton here and lodge your marriage at Home Affairs in February 2020 to be registered. The date of marriage would still be cited as 20 February 2019 in Home Affairs’ records. In other words, you still get to choose your date even if other factors such as how long it’ll take for your status to change are beyond your control.

For those that have just trudged through the story of your status at Home Affairs, welcome back. Thanks for sticking around despite the somewhat disheartening news above! I’m sure when you send that sms, you’ll be waiting with bated breath for the response.

NOTE: More often than not Home Affairs’ system doesn’t send a response immediately. In truth, the system is rather sporadic. If you don’t get a response on the day you sent it, then try again the next day and then try again. If you’ve tried thrice (that sounds a bit pompous but I’m going with it) and still haven’t had any luck then reach out to me and I’ll try for you. For some unknown reason, my phone seems to get a response when others don’t. It’s not because I’m a marriage officer. Perhaps it’s because I’m Telkom’s only cellphone customer. I’ve given yup trying to figure out this anomaly but I’m glad I can often get the answers we need. The point is, I’m here to help if you need me.

And finally there’s the question that confounds a lot of couples and introduces a lot of questions:

Will you be signing an ante-nuptial contract? 

Let me start by explaining that in South African law the default position is that if you don’t sign an ante-nuptial contract (I’m going to refer to this as an ANC from here on out so don’t think I’m talking about the political party) then you will be married in community of property.

Why as a marriage officer do I need to raise the issue of an ANC with you? Because if you are going to execute an ANC, it needs to be done prior to your legal marriage. Now, it could be a few hours before your legal marriage (for the record, I don’t advise this but it must happen before). Trust me on this though: You don’t want to try register a post nuptial contract. In what seems like another life when I was an article clerk, I was involved in doing this for a client and it makes the above martial status issue seem like a walk in the park.

If you decide to execute an ante-nuptial contract, I don’t need to see the actual contract (I know it’s a personal and private document) – all I need is a letter from your attorney confirming that you indeed executed the contract.

Many of your reading this may be thinking, well in community of property is great – 50/50 – exactly what we want! I encourage you to keep reading though. While in community of property may seem very equitable and entirely what marriage is about, it is not without its issues. And that, lovers, is an understatement! While I am a qualified (albeit non-practising) attorney, I am not a notary and a notary is the expert you need to consult about an ANC.

A lot of couples view ante-nuptial contracts as planning for the end of a marriage but this is a narrow view of it. Ante-nuptial contracts can also protect you as a couple. For example, if you run a business and it gets into financial trouble, an ante-nuptial contract can protect you as a family by not allowing creditors to come after your partner’s assets. As I mentioned, I’m not a notary nor a practising attorney but I wanted to give you an example of why an ante-nuptial contract cannot solely be characterized as planning for a divorce.

Talking about finances and the implications of deciding to sign an ante-nuptial contract (or not to) is part of a healthy relationship, in my opinion. There are quite a lot of couples that discuss finances for the first time ever when talking to a notary about their options and while these conversations can be hard, I would argue that they’re aboslutely necessary. I’m not going to get into any further detail about the actual anti-nuptial contract except to say that there are various options at your disposal, including out of community of property and out of community of property with the accrual system.

It always sets me at ease to know that couples have entered an ante-nuptial contract (perhaps that’s the lawyer in me). I advise, at the very least, for couples to consult with a notary about their options so they understand their decisions and the implications of those decisions.

Some couples have a lawyer they have an existing relationship with – if so, ask them whether they’re a notary and able to assist with an ante-nuptial contract. Some couples are lost as to who to ask. If you need help, I do have someone that could assist you. By stating this, I’m not trying to up-sell (I think that’s a term), there is no benefit in it for me other than knowing you’ve spoken to a notary about your options. And that makes me sleep easy (so, I guess there is some benefit to me).

Okay, that’s it. These three “simple” questions seem to have run into quite a long blog which I didn’t intend but I’m hoping that this information will help you and flag a few hiccups that couples experience on their journey to get legally married. Since this post has been administratively heavy, in my next post I’ll be switching over to the other wonderful side of being a marriage officer: Creating personal and meaningful ceremonies.

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