Before 1961, the law of marriage in South Africa was based on the law of the four colonies that had been united in the Union of South Africa, and therefore differed between the provinces. The Marriage Act was enacted to consolidate the law and make it uniform across the country. The act has been amended several times since 1961, most notably in 1970 when banns of marriage were abolished.
Marriage officers
A marriage may be performed only by a marriage officer. All magistrates and justices of the peace are automatically marriage officers. The Minister of Home Affairs (or an official authorised to act on behalf of the Minister) can appoint other civil service employees as marriage officers. In practice, many employees in local offices of the Department of Home Affairs are appointed as marriage officers.
The Minister of Home Affairs can also appoint ministers of religion or other religious leaders as marriage officers. The text of the Marriage Act limits these appointments to Christian, Jewish or Muslim clergy or clergy of "an Indian religion". (Ministers of other religions can be appointed marriage officers under the Civil Union Act.) A religious marriage officer may refuse to perform a marriage that does not comply with his or her religion's doctrines.
The Minister of Home Affairs can retrospectively validate the marriages performed by a person who is not legally a marriage officer who acts in good faith or if the spouses had a good faith belief that marriage officer could legally perform the marriage.
Marriage procedure
Each party to the marriage must provide the marriage officer with his or her South African identity document or an affidavit detailing his or her identity. Since 1970, it has not been necessary to publish banns or obtain a licence, but anyone objecting to a marriage may submit an objection in writing with the marriage officer. If there is an objection, the officer must investigate it and decide whether or not the marriage would be lawful.
A marriage may be performed at any time, but a marriage officer may refuse to do so before eight in the morning or after four in the afternoon. Marriages may only be performed in religious buildings, government offices, or private homes; in all cases the doors of the building must be open. Other locations may be used if one of the parties is seriously ill or injured. Two witnesses must be present. Proxy marriages are not permitted.
The act prescribes a marriage formula to be spoken by the officer, unless their religion prescribes another formula. The officer asks each of the parties:
Do you, [name], declare that as far as you know there is no lawful impediment to your proposed marriage with [name] here present, and that you call all here present to witness that you take [name] as your lawful [wife/husband]?
When each of them has answered "Yes," and have joined hands, the official announces:
I declare that [name] and [name] here present have been lawfully married.
The officer, the spouses and the witnesses then sign the marriage register, which is sent to the Department of Home Affairs to be recorded.
A marriage officer may not demand any payment for performing a marriage, but a religious clergyman may accept a fee for blessing the marriage.
Marriageable age
A person under the age of majority, which was reduced from 21 to 18 by the Children's Act, 2005, cannot marry without the consent of his or her parents or legal guardian. If there are no parents or guardian or for some reason they cannot give consent, a magistrate (acting as a commissioner of child welfare) may grant consent. If the parent, guardian or magistrate refuses consent, a judge of the High Court may grant consent if it is in the interests of the minor.
Further to the requirement for parental consent, no boy under 18 or girl under 15 can marry without the special consent of the Minister of Home Affairs (or an official authorised to act on behalf of the Minister). (This discrimination on the basis of sex predates the Constitution of the Republic of South Africa and may be unconstitutional but has not yet been challenged.)
Offences and penalties
A marriage officer who knowingly performs a marriage which he is legally prohibited, and a person who is not a marriage officer but purports to perform a marriage, can be fined up to R400 and imprisoned for up to one year. A marriage officer who violates other provisions of the Marriage Act can be fined up to R100. A person who makes a false statement for the purpose of marriage can be sentenced as if he or she had committed perjury.
Amendments
The Marriage Amendment Act, 1963 and the Marriage Amendment Act, 1968 were both technical amendments relating to the publication of banns of marriage or notices of intention to marry and the validity of special marriage licences.
The Marriage Amendment Act, 1970 abolished the requirement that banns of marriage or notices of intention to marry be published or that a special marriage licence be obtained. It also extended the application of the Marriage Act to the territory of South-West Africa (now the independent country of Namibia).
The Marriage Amendment Act, 1972 validated marriages contracted before the 1970 amendment came into force where banns or notice had not been correctly published or a special licence had not been correctly obtained.
The Marriage Amendment Act, 1973 allowed religious marriage officers to follow their religion's marriage formula to solemnise the marriage instead of using the formula prescribed in the act.
The Marriage Amendment Act, 1981 inserted a provision allowing the Minister of Home Affairs to validate marriage conducted by someone who was not a marriage officer when the spouses had a good faith belief that he or she was a marriage officer.
The Marriage Act Extension Act, 1997 extended the act to apply in the territory of the former bantustans, superseding their former separate marriage laws.
The banns of marriage, commonly known simply as the "banns" or "bans", are the public announcement in a Christian parish church, or in the town council, of an impending marriage between two specified persons. It is commonly associated with the Catholic Church, the Church of Sweden (Lutheran), the Church of England (Anglican), and with other Christian denominations whose traditions are similar. In 1983, the Catholic Church removed the requirement for banns and left it to individual national bishops' conferences to decide whether to continue the practice, but in most Catholic countries the banns are still published.
A civil marriage is a marriage performed, recorded, and recognized by a government official. Such a marriage may be performed by a religious body and recognized by the state, or it may be entirely secular.
A marriage license is a document issued, either by a religious organization or state authority, authorizing a couple to marry. The procedure for obtaining a license varies between jurisdictions, and has changed over time. Marriage licenses began to be issued in the Middle Ages, to permit a marriage which would otherwise be illegal.
Same-sex marriage has been legal in South Africa since the Civil Union Act, 2006 came into force on 30 November 2006. The decision of the Constitutional Court in the case of Minister of Home Affairs v Fourie on 1 December 2005 extended the common-law definition of marriage to include same-sex spouses—as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation—and gave Parliament one year to rectify the inequality in the marriage statutes. On 14 November 2006, the National Assembly passed a law allowing same-sex couples to legally solemnise their union 229 to 41, which was subsequently approved by the National Council of Provinces on 28 November in a 36 to 11 vote, and the law came into effect two days later. South Africa was the fifth country in the world and the first in Africa to legalise same-sex marriage.
Same-sex marriage has been legal in Ontario since June 10, 2003. The first legal same-sex marriages performed in Ontario were of Kevin Bourassa to Joe Varnell, and Elaine Vautour to Anne Vautour, by Reverend Brent Hawkes on January 14, 2001. The legality of the marriages was questioned and they were not registered until after June 10, 2003, when the Court of Appeal for Ontario in Halpern v Canada (AG) upheld a lower court ruling which declared that defining marriage in heterosexual-only terms violated the Canadian Charter of Rights and Freedoms.
Same-sex marriage became legal in Saskatchewan on November 5, 2004 as a result of a decision of the Family Law Division of the Saskatchewan Court of Queen's Bench. This decision followed similar cases in six other provinces and territories, and pre-dated by eight months the federal Civil Marriage Act of 2005, which made same-sex marriage available throughout Canada. Later court decisions have dealt with the issue of marriage commissioners who object to performing same-sex marriages on the basis of their religious beliefs.
The Marriage Act 1961(Cth) is an Act of the Parliament of Australia which regulates marriage in Australia. Since its passage in 1961, it has been amended on numerous occasions and applies uniformly throughout Australia (including its external territories); and any law made by a state or territory inconsistent with the Act is invalid. The Act was made pursuant to power granted to the federal parliament under s.51(xxi) of the Australian Constitution. Although the federal parliament was given the power to pass laws about marriage at federation in 1901, it did not use this power until the adoption of the Act, while before 1961, each Australian state and territory had its own marriage laws.
Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others, [2005] ZACC 19, is a landmark decision of the Constitutional Court of South Africa in which the court ruled unanimously that same-sex couples have a constitutional right to marry. The judgment, authored by Justice Albie Sachs and delivered on 1 December 2005, gave Parliament one year to pass the necessary legislation. As a result, the Civil Union Act came into force on 30 November 2006, making South Africa the fifth country in the world to recognise same-sex marriage.
Marriage is available in England and Wales to both opposite-sex and same-sex couples and is legally recognised in the forms of both civil and religious marriage. Marriage laws have historically evolved separately from marriage laws in other jurisdictions in the United Kingdom. There is a distinction between religious marriages, conducted by an authorised religious celebrant and civil marriages conducted by a state registrar. The legal minimum age to enter into a marriage in England and Wales is eighteen years. Certain relatives are not allowed to marry. For foreign nationals, there are also residency conditions that have to be met before people can be married. Same-sex marriage was introduced under the Marriage Act in March 2014.
The matrimonial law of Singapore categorizes marriages contracted in Singapore into two categories: civil marriages and Muslim marriages. The Registry of Marriage (ROM) administers civil marriages in accordance to the Women's Charter, while the Registry of Muslim Marriages (ROMM) administers Muslim marriages in accordance to the Administration of Muslim Law Act (AMLA). All marriages performed in Singapore must be registered with the relevant registry in order to be legally valid.
In South Africa, marriage exists in a number of different forms, as a result of the diversity of religions and cultures in the country. A man in South Africa may have more than one spouse but a South African woman may only have one spouse. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples. Since 1998 the law has recognised marriages, including polygynous marriages, conducted under African customary law, as well as religious laws such as Islamic law. In 2006 the South African constitutional court ruled in favour of recognizing same-sex marriage. It is currently the only country in the world to recognise both polygamy and same-sex marriages, albeit not in conjunction.
The Civil Union Act, 2006 is an act of the Parliament of South Africa which legalised same-sex marriage. It allows two people, regardless of gender, to form either a marriage or a civil partnership. The act was enacted as a consequence of the judgment of the Constitutional Court in the case of Minister of Home Affairs v Fourie, which ruled that it was unconstitutional for the state to provide the benefits of marriage to opposite-sex couples while denying them to same-sex couples.
Civil partnerships were introduced in South Africa by the Civil Union Act, 2006, which also legalised same-sex marriage. Civil partnerships can be formed by opposite-sex couples and by same-sex couples, and have the same rights, responsibilities and legal consequences as marriages.
South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. It may be defined as "that subdivision of material private law which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: (i) husband and wife ; (ii) parents, guardians and children; and (iii) relatives related through blood and affinity."
"As far as family law is concerned, we in South Africa have it all. We have every kind of family; extended families, nuclear families, one-parent families, same-sex families, and in relation to each one of these there are controversy, difficulties and cases coming before the courts or due to come before the courts. This is the result of ancient history and recent history [...]. Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it's a paradise, for judges a purgatory."
Polygamous marriages may not be performed in New Zealand. A married person who enters into another marriage in New Zealand is guilty of the crime of bigamy. Similar rules apply for civil unions, which have been legal in New Zealand since 2005. However, polygamous marriages legally performed in another country have limited recognition in New Zealand law, provided that no person involved was living in New Zealand at the time of the union.
Marriage in New Zealand is governed by an Act of Parliament. The minimum marriage age is 18 years, or 16 years with consent of the Family Court. Polygamous marriages are not permitted in New Zealand. There are prohibitions of marriages between some relatives and some who are already in a civil union.
The Clandestine Marriages Act 1753, also called the Marriage Act 1753, long title "An Act for the Better Preventing of Clandestine Marriage", popularly known as Lord Hardwicke's Marriage Act, was the first statutory legislation in England and Wales to require a formal ceremony of marriage. It came into force on 25 March 1754. The Act contributed to a dispute about the validity of a Scottish marriage, although pressure to address the problem of irregular marriages had been growing for some time.
Marriage in Australia is regulated by the federal government, which is granted the power to make laws regarding marriage by section 51(xxi) of the constitution. The Marriage Act 1961 applies uniformly throughout Australia to the exclusion of all state laws on the subject.
The Marriage Amendment (Definition and Religious Freedoms) Act 2017(Cth) is an Act of the Parliament of Australia, which legalises same-sex marriage in Australia by amending the Marriage Act 1961 to allow marriage between two persons of marriageable age, regardless of their gender.
The Civil Union Amendment Act, 2020 is an act of the Parliament of South Africa which repealed section 6 of the Civil Union Act, 2006, a section which had allowed civil marriage officers to opt out of solemnising same-sex marriages on the grounds of conscience, religion or belief.
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