Ways to get married in South Africa

Marriage can take various forms in South Africa, depending on your religion, culture and sexuality, but the underlying requirements for a union to be legally recognised are essentially the same.

The Marriage Act of 1961, which applies to monogamous marriages of heterosexual couples, is the bedrock on which a civil marriage is based. A civil marriage is one that confers certain legal rights (and obligations) on each spouse and is recognised in our courts.

Laws passed in the post-1994 democratic era extended the rights of marriage to people who did not previously enjoy these rights, or whose rights were limited. The Recognition of Customary Marriages Act of 1998 recognised marriages performed according to traditional African customs, including polygynous marriages (one man married to several women). The Civil Union Act of 2006 allowed for same-sex unions that are legally equivalent to civil marriages.

General rules for a civil marriage

The following basic rules apply to formalising a civil marriage:

• Both partners must be aged 18 years or older, unless, in the case of a minor (a person under 18), consent is obtained from his or her parents or guardian or, failing that, a magistrate or judge. In addition to parental consent, no boy under 18 or girl under 15 can marry without the special consent of the Minister of Home Affairs or authorised official. These age restrictions stemming from the Marriage Act may change, subject to constitutional challenges and law reform.
  
  
• The action must be lawful in that both partners must consent to the marriage, they may not be closely related (brother and sister or parent and child), and, if one of them has been married before, that marriage must have been legally dissolved.
  
  
• The ceremony must be performed by a marriage officer recognised by the Department of Home Affairs. This may be a magistrate, judge, authorised civil service employee or minister of religion.
  
  
• The ceremony may be in a religious building, government office or private home, unless one person is ill or incapacitated, in which case it may be in a hospital or care facility. In all cases the doors of the building must be open.
  
  
• During the ceremony it must be confirmed that there are no objections to the marriage. Thereafter, in front of witnesses, the two people must be declared lawfully married.
  
  
• The officer, couple and two witnesses must sign the marriage register, which is forwarded to the Department of Home Affairs, where the marriage is registered.

Religious marriages

Until recently, marriages performed under religious practices, for example, Islamic, Jewish or Hindu traditional practices, were not fully recognised under South African law unless they also complied with the rules for civil marriage, outlined above. This meant that although the marriage was valid in the eyes of the religious community, it did not automatically grant spouses and the children of such marriages the same legal rights as a civil or customary marriage.

However, this position was recently overturned by the Constitutional Court, which, in 2022, upheld a Supreme Court of Appeal decision that the failure of the state to recognise a Muslim marriage was unconstitutional.

The court declared that the laws applicable to civil marriages, including those protecting children and spouses’ property rights, must apply to Muslim marriages, including polygynous arrangements. Although the judgment was specific to Muslim marriages, it may open the door to future legal arguments for broader recognition of other religious marriages. At present, Jewish and Hindu marriages are not automatically recognised unless they comply with civil marriage requirements.

The relevant Acts have yet to be amended to reflect the court decision.

African customary marriages

Under the Recognition of Customary Marriages Act, signed into law by President Nelson Mandela on 20 November 1998 and effective from 15 November 2000, marriages performed under African customary law were accorded the same rights as civil marriages. Customary law is defined as “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”.

Marriages concluded before 15 November 2000 were immediately recognised under the law. However, marriages concluded since that date are only recognised if they comply with the following conditions:

• The partners are 18 years of age or older. (Special permission must be obtained from the Minister of Home Affairs or any officer in the public services authorised in writing thereto for a person under 18 to marry).
• Each consents to the marriage.
• Neither of them must already be in a civil marriage.
• The marriage is negotiated and celebrated in accordance with customary law.

People married before 15 November 2000 were obliged to register their marriages at the Department of Home Affairs within 12 months. Those married since then should register within three months of the date of their wedding. However, even an unregistered customary marriage is legally valid.

Same-sex marriages

South Africa was the fifth country in the world to legalise same-sex marriage and remains the only African country to have done so.

The Civil Union Act of 2006 allows for a legally recognised union between two people regardless of their gender. This may take the form of a marriage or civil partnership, which is essentially the same as a civil marriage in all but name. The rules applicable to civil marriages, outlined above, apply to civil unions.

Any minister of religion or any person holding a responsible position may be appointed as a marriage officer under the Civil Union Act. Still, importantly, those appointed under the Marriage Act are not automatically able to solemnise unions under the Civil Union Act.