Same-Sex Marriages In South Africa

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.

South Africa has become an enormously sought-after location for gay marriages for reasons that include some of the most enviable venues, scenery and beaches in the world.

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.

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 (hereafter referred to as “the 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.

Where can couples get married in terms of this Act?

  • Any public office, including the department of home affairs and magistrates court in your area.
  • Any private dwelling, including your house.
  • Any other place that is used for the purposes of marriages or civil partnerships.
  • In case of illness, bodily injuries and other physical limitations, the marriage officer may use any other suitable place to marry couples.

What documents do you need to be able to enter into a marriage or civil partnership?

  • Identity Document.
  • Affidavit (when you don’t have an ID or passport) confirming your identification.
  • Application forms specific to the Civil Union Act. These are obtainable from your nearest Department of Home Affairs.
  • Divorce decree or death certificate of your deceased spouse, if you were married before.
  • Two witnesses will be required in order to conduct a marriage or civil partnership.

Provisions for marriage officers
It is important to note that not all marriage officers in terms of the Marriage Act have to marry same-sex couples. If the marriage officer has an objection of conscience, belief or religion to marrying same-sex couples, he/she has to write to the government after which he/she will be granted exemption from having to perform such marriages.
A marriage officer in terms of the Civil Union Act will not be exempted from performing same-sex marriages.

Who can conduct marriages and/or civil partnerships under this Act?

  • Any civil marriage officer (e.g. Magistrate; selected government officials and diplomats; special justice of the peace) recognised by the Marriage Act are automatically entitled to conduct marriages and civil partnerships under the Act.
  • Any minister of religion who has been granted authorization by the Minister and where the religious organization or denomination has also been granted permission by the Minister. This permission must be granted in writing, allowing the minister of religion and the denomination or organization to conduct marriages and/or civil partnerships under the Civil Union Act.

Important information for ministers of religion who want to be marriage officers under this Act

  • Apply immediately to the Minister of Home Affairs to have your religious organization or denomination designated as an accredited marriage institution in terms of this Act.
  • Then as an individual religious minister, you will be required to make an application to marry under this Act, after your denomination has made an application.
  • Once you have applied, follow up with the Minister to get a written commitment from her office. It may take time before your application is approved. Even if you are registered to conduct marriages under the Marriage Act, you cannot conduct same sex marriages under the Civil Union Act until permission is granted by the Minister.
  • You could also refer couples wishing to marry under this Act to a civil marriage officer that you know has a permit to conduct marriages and/or civil partnerships in terms of the Marriages Act or the Civil Union Act.

Who cannot conduct marriages and /or civil partnerships under this Act?

  • Any marriage officer that works for government and has been exempted in writing by the Minister from conducting marriages and civil partnerships on the basis that it is against his/her religion, belief and conscience.
  • Any minister of religion that has not been granted permission in writing from the Minister to conduct marriages and/or civil partnerships under this Act. Such a person would have applied to the Minister after his or her denomination or organisation had been designated under this Act (see point 4 above).