Section 17 of the Deeds Registries Act 47 of 1937 refers only to marriages recognized by our law, and polygamous marriages not recognised by our law are not regarded as valid marriages under Roman-Dutch law (see Sedat’s Executors v The Master of the Supreme Court (Natal) 1917 AD 302).
Section 2 of Act 22 of 1914 provided for marriages between Indians to be registered provided:
- there existed a marriage union under the tenets of an Indian religion
- there did not exist any other marriage so recognized between either party with another person; and
- the parties were desirous that such union should be recognized as a marriage.
The past tense has been used in the previous paragraph because section 2 of Act 22 of 1914, as amended, was repealed by section 1 of the General Law Amendment Act 80 of 1971. The effect of registration was to bring about a valid and binding marriage between the parties from the date when the union was contracted. The parties had to be domiciled in South Africa at the date of their joint application for the registration of the marriage.
Subsequently, by section 2 of Act 68 of 1963, it was provided that any union registered after 1 January 1964 (see GN 1453 dated 20 September 1963 in Gazette 607) would become a valid and binding marriage only as from the date of registration.
The consequences flowing from such marriages are determined from the date of registration of the marriage, and are as follows:
Marriages registered from 2 July 1914 to 31 December 1963 inclusive
The consequences flowing from the marriage depends on domicile of husband at the date of the union.
Where the husband was domiciled in India or Pakistan, the marriage would be governed by the laws of India or Pakistan. The vesting clause must indicate this and the fact that the marriage was registered under the above section.
If the husband was domiciled in South Africa (excluding KwaZulu-Natal), community of property will ensue. (No ante nuptial contract could be entered into subsequent to the union—except a postnuptial contract in Natal prior to Act 50 of 1956.) Vesting therefore in the past could not be made in the woman’s name in provinces outside of Kwa Zulu- Natal.
Marriages registered from 1 January 1964 to 31 January 1972 inclusive
The consequences flowing from the marriage depend upon the date of registration and must be determined in accordance with the usual rules as at that date. In other words, the marriage was in community of property unless an antenuptial contract was entered into prior to the date of registration of the marriage.
From 1 February 1972
No marriage can be registered because section 2 of Act 22 of 1914 was repealed from the above date.
To prove a marriage as described above the responsible practitioner must obtain a certified copy of the marriage certificate and, in the case of a marriage registered before 1 January 1964, in addition an affidavit by husband and wife attesting as to the husband’s domicile at the date of the union and the laws governing the marriage.
Should you require more information, please do not hesitate to contact us.
TONKIN CLACEY PRETORIA
012 346 1278