Marriage Act, Civil Union Act and Recognition of Customary Marriages Act
South Africa’s legal framework for recognising intimate relationships is both diverse and inclusive, reflecting the country’s commitment to equality and cultural heritage. Couples wishing to formalise their unions can do so under one of three main pieces of legislation:
- The Marriage Act, 1961 (Act 25 of 1961)
- The Civil Union Act, 2006 (Act 17 of 2006)
- The Recognition of Customary Marriages Act, 1998 (Act 120 of 1998)
While all three Acts provide for the registration and legal recognition of relationships, they differ in scope, eligibility, formalities and cultural context. Understanding these distinctions helps couples choose the legal path that best fits their circumstances, beliefs and traditions.
1. The Marriage Act
The Marriage Act governs civil and religious marriages between a man and a woman. It reflects the traditional conception of marriage and outlines specific requirements for solemnisation.
Marriages under this Act are generally performed by authorised marriage officers, such as magistrates or ministers of religion and must take place at a public office, private home or place of worship as stated in Section 29.
This Act remains the most commonly used framework for heterosexual couples marrying through civil or religious rites.
2. The Civil Union Act
The Civil Union Act was introduced in 2006 to promote equality and inclusivity, particularly for same-sex couples who had previously been excluded from marriage rights.
It allows both same-sex and opposite-sex couples to enter a legally recognised union, which may be called either a “marriage” or a “civil partnership.” Ceremonies can be conducted at any location, offering greater flexibility than the Marriage Act.
This Act was a direct outcome of the landmark Constitutional Court case Minister of Home Affairs v Fourie (2005), where the court ruled that denying same-sex couples the right to marry was unconstitutional. The judgment affirmed that recognising all unions fosters a society grounded in human dignity and respect for diversity.
The Civil Union Act also addresses religious freedom: Section 6 allows marriage officers to object to solemnising same-sex unions on the grounds of conscience, religion, or belief.
3. The Recognition of Customary Marriages Act
The Recognition of Customary Marriages Act acknowledges and regulates marriages concluded under African customary law. It ensures that these unions rooted in the traditions and customs of South Africa’s indigenous communities receive full legal recognition and protection.
Customary marriages must comply with both customary practices and legal formalities, including registration with the Department of Home Affairs. A key distinction of this Act is that it permits polygynous marriages (where a husband may have more than one wife), provided all unions are conducted in accordance with customary law and properly registered.
This Act safeguards the rights of women and children within customary unions by ensuring that issues such as inheritance, property ownership and dissolution are governed by clear legal principles.
4. Legal Consequences and Overlaps
Under South African law, all recognised marriages – whether under the Marriage Act, Civil Union Act, or Recognition of Customary Marriages Act – carry similar legal consequences. These include rights related to inheritance, patrimonial property systems, spousal maintenance and benefits.
However, an individual cannot be a party to more than one valid marriage or union at the same time under different Acts. For example, someone in a civil partnership under the Civil Union Act cannot also be married under the Marriage Act or the Recognition of Customary Marriages Act simultaneously.
5. Choosing the Right Framework
Today, couples in South Africa have the freedom to choose the legal framework that aligns with their personal, cultural and religious values. Whether solemnised through civil law, celebrated in accordance with religious rites, or rooted in ancestral custom, every recognised marriage enjoys equal dignity and protection under the law.
Before formalising your union, it’s essential to understand which Act applies to your relationship and to ensure all legal and procedural requirements are met.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, neither the authors nor the publisher accept responsibility for any actions taken based on the information provided. This material is intended for general informational purposes only and does not constitute legal advice.