SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Lauren Christie, Clarks Attorneys
Void and Voidable Marriages A void marriage fails to meet the requirements for a civil marriage as set out in the Marriages Act 25 of 1961 and is considered non-existent, with no legal consequences. A voidable marriage is valid until set aside by a court. Requirements for a valid marriage include: • solemnisation by an authorised marriage officer; • the presence of both parties during the ceremony (proxy marriages are not allowed); • the absence of prohibited blood relationships; and • legal capacity of both parties. 1.2 Choice of Jurisdiction in Divorce Proceedings In terms of Section 2 (1) of the Divorce Act, a court has jurisdiction over a divorce if one or both of the parties are: • domiciled in the court’s jurisdiction on the date the divorce is initiated; or • ordinarily resident in the court’s jurisdiction and have resided in South Africa for at least one year prior to filing. If jurisdiction is disputed by the defendant, the court may consider: • whether the matter involves the same cause of action as a matter pending in another jurisdiction (lis alibi pendens) and, if so, which jurisdiction is more appropriate (forum conveniens); and • the relevant facts of the matter at hand, such as: (a) applicable foreign law; (b) the location of evidence, children and assets; (c) procedural advantages or prejudice; and (d) costs and timelines in different jurisdictions. South African courts do not recognise sole jurisdiction
dictions, such as Gauteng, comprehensive financial disclosure forms must be submitted after pleadings have closed in instances where the disputes include maintenance or proprietary aspects of the divorce. Discovery Both parties must disclose the relevant documents they plan to rely on during the trial. Parties exchange discovery notices (calling for the other to disclose the documents they seek to rely on) and submit sworn discovery affidavits under cover of which they dis ‑ close such documents, and may request additional documentation from the other party. Experts may also be engaged, and witnesses subpoenaed. Pre-trial Pre-trial conferences aim to resolve as many issues as possible before the trial and finalise practical arrange ‑ ments between the opposing attorneys and counsel. Once all pre-trial steps are complete, the matter is certified as trial-ready. Trial After certification, the court schedules a trial date. While strict compliance with rules could make cases trial-ready within 12 months, the allocation of the trial date is at the court’s discretion and is influenced by a number of factors, including the number of matters enrolled and the availability of judges. Theoretically, a trial date should be allocated within a few months of the matter being certified trial ready. The above process pertains to High Court divorce proceedings. Regional courts can also hear divorce cases, but different procedural rules and directives apply. Religious Marriages Historically, religious marriages (such as Muslim and Hindu) were not recognised in South Africa. However, this has changed following the decision in Women’s Legal Centre Trust v President of the Republic of South Africa and Others (2022) ZACC 23, in which the court declared parts of the Marriage Act and Divorce Act unconstitutional for excluding Muslim marriages. Mar ‑ riages that are concluded according to Islamic rites are now recognised.
provisions in prenuptial agreements. Domicile, Residence and Nationality
Domicile refers to a person’s intended permanent home. South Africa uses the lex domicilii matrimonii principle to determine marital property laws – ie, the
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