Registering a Marriage in South Africa
There are three different laws under which a marriage may be formed in South Africa:
- The Marriage Act, 1961, which allows for the solemnisation of a civil or religious marriage between a man and a woman.
- The Recognition of Customary Marriages Act, 1998, which allows for the registration of marriages under African customary law. Some communities’ customary law allows for polygynous marriages, and these are recognized subject to certain conditions.
- The Civil Union Act, 2006, which allows for the solemnisation of a civil or religious marriage or a civil partnership between two people regardless of gender. The legal consequences of a marriage under the Civil Union Act are the same as those of a marriage under the Marriage Act.
Civil Union Act
On 30 November 2006, South Africa made world headlines when it became the fifth country in the world (and the first in Africa) to legalise marriage between two people of the same sex under the Civil Union Act.
What is the Civil Union Act?
This is the law that now provides for legal recognition of marriages and civil partnerships, collectively referred to as civil unions, between two persons regardless of their sexual orientation or gender identity.
Aim of the Civil Union Act
The main aim of the Act is to provide for the solemnisation of civil unions by way of marriage or civil partnership, and the legal consequences thereof as well as matters incidental thereto. A civil union is defined as being a voluntary union between two persons of the same sex or of opposite sexes, older than the age of 18 and solemnized and registered either by way of marriage or civil partnership. “Civil union partners” thus have a choice between registering
What does the Civil Union Act provide to lesbian, gay and transgender couples?
A couple has a choice to have their relationship legally registered as a marriage or a civil partnership.
A couple will get a certificate that indicates that they have either entered into a marriage or a civil partnership, depending on their choice. Described as a registration certificate, the certificate indicates registration under this Act and is not a marriage certificate under the Marriage Act. The certificate will serve as a legal proof that the two partners are married or civil partnered under this Act.
All the legal and material benefits and responsibilities that flow from marriages concluded under the Marriage Act of 1961 will also apply to marriages or civil partnerships concluded under the Civil Union Act.
Who qualifies to get married or civil partnered under this Act?
- Any unmarried person who is over the age of 18 years
- Any person who has been married before and has proof of divorce or a death certificate of his or her deceased spouse
- A foreign national with a valid ID or passport
Who does not qualify to get married or civil partnered under this Act?
- Any person who is already married or civil partnered under this Act.
- Any person who is currently married under the Marriage Act of 1961 or the Recognition of Customary Marriages Act of 1998.
Will the marriage or civil partnership under this Act be recognized outside of South Africa?
The recognition of marriage and civil partnership under this Act will only be recognized outside of South Africa in countries that have a civil union or same sex marriage with similar provisions as in South Africa.
Each country would have to be assessed on a case-by-case basis.
Marriages under this Act are more likely to be recognized as marriages abroad, with civil partnerships more likely to attract only civil union (less than marriage in many countries) status.
The marriages and civil partnerships under this Act will not be recognized in countries where homosexuality is still penalized by law.