Second, the bond of betrothal or betrothal is not a prerequisite for entering into a valid marriage in any of the three legal systems under discussion. In terms of South African law, the fate of engagement gifts is determined by whether the engagement has been terminated by mutual consent or whether there has been a breach of promise to marry.
3 3 The law of England and Wales
As mentioned above, the entry into force of the Civil Union Act89 legalizes civil unions between same-sex couples.90 A more acceptable definition of a civil marriage in modern South African society would therefore be "the legally recognized voluntary union of two people with the exclusion of others while it lasts".91 Mention must be made of the fact that the Civil Union Act extends to both heterosexual and same-sex couples. Adultery, next to unreasonable behaviour, is one of the most commonly used grounds for divorce in England and Wales.97.
3 4 Comparison
Although a man who wishes to enter into a polygynous marriage is not required to seek the consent of his wife (or anyone else for that matter) in terms of Islamic law, the aspect of polygynous unions must be regulated to ensure fairness between all wives and wives and to ensure that the husband is financially able to provide maintenance for all his wives as he bears the sole responsibility of maintenance during the existence of the marriage.
4 THE LEGAL REQUIREMENTS FOR A VALID MARRIAGE
4 1 Islamic law
If both parties to the marriage are Muslim, it is required that the witnesses are also Muslim. ii) Offer (Ijab) and acceptance (qabul) of the marriage proposal. To publicly announce the marriage, it is permitted to play the tambourine or beat the duffs.155.
4 2 South African law
According to the Law on Marriage185 and the Law on Civil Union186, the parties are prohibited from entering into a marriage if one or both of them are already married. Civil marriages in the sense of the Marriage Act195 are reserved for heterosexual couples.196 In terms of customary law, same-sex persons cannot enter into a customary marriage. The Marriage Act and the Civil Union Act specify almost identical formalities for the ceremony that must be completed for the marriage to be valid.
Gay Equality Project v Minister of Home Affairs) supra par 64. competent witnesses at the time of the marriage. In terms of section 11(2) of the Marriage Act and section 4 of the Civil Union Act, only a duly appointed marriage officer can perform a marriage. In terms of section 23 of the Marriage Act and section 9 of the Civil Union Act, any objection to the proposed marriage must be submitted to the marriage officer who will solemnize the marriage.
The marriage registrar has the duty to investigate the grounds for the objection and can only solemnize the marriage if it has been established that there are no legal obstacles to the intended marriage.203. v) Proof of age and identity. In order to solemnize a marriage, it is essential that the marriage registrar asks each of the parties whether there are any legal obstacles that prevent them from entering into the marriage, and whether he or she is willing to accept the other as to accept his or her. legally married woman or husband. respectively.205.
4 3 The law of England and Wales
The enactment of the Nullity of Marriage Act 1971 provides that a marriage entered into after 31 July 1971 would be void in the absence of genuine consent.217 The Matrimonial Causes Act 1973 recognizes duress, mistake, unsound mind and certain others218 as the circumstances vitiating consent and thus rendering the marriage void. Where parties enter into marriage contrary to this absolute prohibition, they will be guilty of the crime of bigamy. A previous marriage or a civil partnership always invalidates a later marriage. 222. iii) Persons of the same sex.
As indicated previously, the coming into force of the Marriage (Same-Sex Couples) Act 2013 legalized same-sex marriage in England and Wales. A marriage solemnized according to the rites of the Church of England must be solemnized in the Anglican Church, unless the parties have chosen to be married by special licence. 232. An Anglican marriage must be performed by a minister of the Church of England.238 The marriage is considered void if the parties knowingly and.
Where the parties consummate their marriage according to the rites of the Church of England, the relevant religious authorities determine the content of the marriage ceremony.243. All marriages and civil partnerships solemnized in England and Wales must be registered.246 Failure to register the marriage does not affect the validity of the marriage.247 The responsibility for registering the marriage rests with the person who conducts the marriage ceremony. ,248 or the person appointed for the purpose of registering the marriage.249.
4 4 Comparison
Similarly, all three legal systems require the parties to the marriage to be of sound mind when entering into the marriage. This is the position regardless of the age of the woman entering into the marriage. Both Islamic law and English law require compliance with formalities related to the publication of the marriage.
Islamic law requires the publication of a marriage only after it has been solemnized in order to distinguish the marriage from mere fornication. English law requires marriage to take place in the Church of England where the marriage is solemnized according to the rites of the Church of England, unless the parties have chosen to marry under a special licence. If the parties wish to enter into a civil marriage, the place where the marriage takes place must have the approval of the local body.
In contrast, both South African law and English law require a designated marriage officer to solemnize the marriage. However, non-registration of the marriage with the local authorities does not affect the validity of the marriage.
5 MARITAL RIGHTS AND DUTIES
At common law, a husband had a duty to support his wife according to his means.339 The Equality Act 2010 abolished the gender rule. Currently, the duty of maintenance is regulated by law,340 which stipulates that there is a mutual duty of maintenance between the spouses at the time of marriage. The differences between the three legal systems relate to the payment of dowry, alimony, residence, husband's headship and surname.
Under South African and English law, this mutual maintenance obligation exists throughout the marriage and can even be extended in certain circumstances upon dissolution of the marriage. Islamic law delegates the management of the household and the purchases related to the household to the wife. As far as the marital home is concerned, in Islamic law it is the sole duty of the husband to provide suitable accommodation for the wife according to his means.
The woman has the right to stay in the matrimonial home during the existence of the marriage as well as during the 'idat, if the marriage is terminated by divorce. In terms of South African and English law, both parties have the right to occupy the matrimonial home during the marriage and neither spouse can evict the other from the matrimonial home. In terms of South African law, there is no similar duty on the wife where the parties are civilly married within the meaning of the Marriage Act or the Civil Union Act.
However, Islamic law and South African common law are somewhat patriarchal in nature, as the husband is considered the head of the family and has the final say in matters relating to the family.
South African law gives both spouses the authority to bind each other for the purchase of household necessities and where the parties are married in community of property, section 15 of the Matrimonial Property Act367 gives both spouses equal powers of administration in in relation to the common property. In terms of English law, there is no requirement that spouses share household expenses equally, or even that each spouse is required to make an equitable contribution to household expenses. However, it should be borne in mind that the conclusion of the marriage contract essentially depends on the consensus between the parties.
Different types of consent are required, depending on the nature of the legal act the spouses wish to perform. The fundamental rule regarding the matrimonial property system “out of community of property, and community of profits and losses without accrual”. Despite the fact that the spouses retain separate property during the continuation of the marriage, spouses married under the accrual system must provide pro rata maintenance of the necessities of life.
During the existence of the marriage, the spouses are considered to be legal strangers to each other, and therefore do not require consent from each other to enter into contracts or when incurring debts. In Islamic law, there is also no joint administration of assets acquired by the spouses during the existence of the marriage.
6 CONCLUSION
A mutual duty of support arises when the parties are married outside the community of property, which is subject to the accrual system. 405. Despite the fact that there is no statutory code governing matrimonial property regimes in England and Wales, the default matrimonial property system is out of community of property in the sense that each spouse retains ownership and control over all of his or her property , whether it is or not. the property was acquired before or during the existence of the marriage.406 Although the default marital property regime is outside community of property, in the case of divorce, little attention is paid to strict property rights when deciding how property should be divided based on need. . Ownership of assets, especially those acquired before the marriage, may be taken into account when deciding how the surplus should be divided. 407.
As mentioned earlier, in Islamic law the general rule as far as matrimonial property regimes are concerned is that the marriage takes place outside the community of property, without sharing assets or debts. A marriage outside community of property with accrual is also foreign to Islamic law. Parties can choose to enter into a prenuptial agreement to arrange their marital assets in a manner that suits them best.
In contrast to the position described above, there are currently three matrimonial property distributions in operation in South Africa, each with its own advantages and disadvantages. In English law, while the standard matrimonial property distribution is marriage out of community of property, where the marriage is dissolved by divorce, little regard is paid to strict property rights.
