If I get married overseas and move back to South Africa, do we need to inform Home Affairs?

The long answer

Let’s take question 2 first: Are you under any legal obligation to inform Home Affairs of your marriage? 

No, you are not, but it’s not completely uncomplicated:

DIRCO (the Department of International Relations and Cooperation) says, “There is no provision for the registration of the marriage of a South African citizen solemnized in a foreign country.”

“The Department of Home Affairs may however be informed of the marriage, so that the marital status and surname, if it has changed, of a South African citizen to be updated on the Population Register.”

But Van Deventer & Van Deventer Incorporated says, although there is no formal application to register such a marriage, “it is required (my emphasis) that the marriage be declared at the Department of Home Affairs. This is so that the marital status of the South African citizen as well as the surname, if it has been changed, may be updated on the National Population Register.”

I could not find any adverse consequences for this failure to update the Population Register in the case of a non-customary marriage such as yours, in which your name has not changed. 

But it may be that it’s better to be on the safe side and report the marriage.

You can contact the Home Affairs Call Centre (HACC) on 0800 60 11 90 or email hacc@dha.gov.za for any enquiry

Importantly, this is the current legal position with regard to retaining your maiden name: “Female married applicants may elect to use their married surname, their maiden surname, a combination of both current married surname and maiden surname i.e. double-barrel surname or any other surname which she bore at any prior time, without having to formally apply for change of surname.” (Source: DIRCO)

If you do decide to update your marital details on the Population Register, these are the documents you need to give Home Affairs: 

• A letter or written request with the applicant's full contact details

• A certified copy of the applicant's South African passport, identity document, or birth certificate

• A certified copy of the foreign marriage certificate

There is no application fee for the registration of a marriage with Home Affairs and no certificate is issued. 

Turning to your first question about possible problems with settling your joint estate if either of you die:

A 19 September 2023 article by Munaf Mukadam on Moneyweb explains that spouses married in community of property (COP) share a joint estate where all assets and liabilities are equally shared, including assets and liabilities acquired before the marriage. The spouses have an equal and undivided share in the joint estate, which is indisputable.

At death, the surviving spouse is entitled only to their half share of the estate and not the whole estate. The deceased spouse can leave their share to anyone they wish. 

Mukadam goes on to explain that “should the deceased spouse have a larger estate than the surviving spouse, assets will be transferred to the surviving spouse as they are married in COP. In this instance, or where the deceased bequests a part of or the full share of their estate to the surviving spouse, no capital gains tax (‘rollover relief’ principle) or estate duty (Section 4q of the Estate Duty Act) will apply.” 

This applies only to assets in South Africa.

Sanlam Reality says that if you and your spouse jointly own a property and they had bequeathed their portion of the property to you, you would still have to pay transfer costs on the half of the property to be transferred into your name

While assets inherited by the surviving spouse will be exempt from Capital Gains Tax (CGT) and estate duty, this is not the case if the deceased spouse bequeathed part or all of their 50% share to others. In that case CGT and estate duty would apply.

Sanlam Reality says the exception to all this is when a couple has decided to mass their estate at death. They explain that this means that the deceased’s half-shares of the joint estate are combined in a single massed estate with those of the remaining spouse.

Wishing you the best,
Athalie