Intro

Marriage may be defined as a legally recognised, life-long, voluntary union between a man and a woman, or two people of the same sex.

Civil marriages are protected by the law, and now so are same-sex and customary marriages. Religious marriages are recognised by our courts only in some instances, and domestic partnerships have no legal protection. There is no such concept as a common law wife in South African law.

The formalisation and registration of civil marriages, customary marriages and same-sex marriages (civil unions) are all managed by the Department of Home Affairs.

Civil marriages in South Africa has been governed and regulated by the Marriage Act 25 of 1961.

Customary marriages are recognised through the Recognition of Customary Marriages Act 120 of 1998, which came into effect on the 15th November 2000. The Act recognises marriages that are valid at customary law and existing before 15 November 2000 or that are customary marriages entered into after 15 November 2000 that comply with the provisions of the Act. This recognition applies to each of the person’s customary marriages where a person is a spouse in more than one customary marriage.

To be recognised as a valid customary marriage, the prospective spouses must both be over 18 years old and consent to the marriage in terms of customary law and the marriage must be negotiated and entered into or celebrated in accordance with customary law.

The customary marriage must be registered within 3 months of the date of the marriage.

South Africa became one of very few countries to give legal protection and marriage benefits to partners in same-sex relationships and passed the Civil Union Act 17 of 2006,. The legislation was adopted as a direct response to a landmark decision made by the Constitutional Court. The Civil Union Act came into being on the 30 November 2006. This Act applies to same sex and heterosexual couples. A civil union is defined as a “voluntary union of 2 persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership in accordance with the procedures prescribed in this Act, to the exclusion while it lasts of all others.”

Although purely religious marriages  ( Hindu and Muslim marriages) are not recognised as valid marriages by South African law. The draft Muslim Marriages Bill was proposed to the SA Law Reform Commission in  2003 and we still await the outcome from Parliament on this Bill which aims to make provision for the recognition of Muslim Marriages.

Domestic, cohabitation or life partnerships, where two people, regardless of gender, live together without marrying under the Civil Union Act, are not regulated by law.

The statutes that currently regulate the formalities of marriages and civil unions in South Africa are: