Within the South African context, our legal framework for recognising intimate relationships is unique. Our legislative framework offers various legislative pathways for couples to formalise their unions. The two most prominent Acts are the Marriage Act, 1961 (Act 25 of 1961) and the Civil Union Act, 2006 (Act 17 of 2006). Both Acts, while governing the solemnisation and registration of partnerships, differ in various aspects, including scope, eligibility, formalities, and social context. If you find yourself in a position where you want to solemnise your relationship, it is important to know these differences and to know which Act is most applicable to you and your relationship. 

When looking at a heterosexual marriage conducted according to civil or religious rites, the Marriage Act will be the primary piece of legislation to focus on. This Act reflects the older and more traditional conceptions of marriage as a union between a man and a woman. In contrast, the Civil Union Act allows both same-sex (homosexual) and opposite-sex (heterosexual) couples to enter a legally recognised union. This Act came to be in response to constitutional imperatives for equality and inclusivity, as same-sex couples, prior to the Civil Union Act, had been historically excluded from marriage. The Civil Union Act also allows for couples to call their union either a “marriage” or a “civil partnership”, allowing same-sex couples to remove the word “marriage” from their union. 

As seen from the above, a notable distinction between the Acts is who can marry under each Act. The Marriage Act is limited to opposite-sex couples, while the Civil Union Act is inclusive of both same-sex and opposite-sex couples. The Civil Union Act being so inclusive was the direct result of the court case of Minister of Home Affairs v Fourie, which held that denying same-sex couples to marry was unconstitutional. It was stated in that case that, “Permitting those who have been excluded from marrying to marry can only foster a society based on respect for human dignity and human difference.”

Another dissimilarity between the Acts includes the designation of marriage officers. While both Acts allow certain public officials, including magistrates and religious ministers, to be designated as marriage officers, the Civil Union Act includes specific provisions relating to such marriage officers. Section 5 of the Civil Union Act allows for religious denominations to apply for designation under the Act, and Section 6 allows for a marriage officer to object to solemnising a same-sex union on grounds of conscience, religion or belief. This contrasts with the Marriage Act, where no mention is made in the Act allowing a marriage officer to object to solemnising a union. This, however, does not mean that marriage officers can be compelled to conduct marriages that contravene their religious views.

When focusing on the requirements for solemnisation, both Acts require valid identity documentation, that it be solemnised in the presence of two competent witnesses, and that it be registered. The Civil Union Act is less strict as it allows for registration and solemnisation at any location and is not limited to what is stated in Section 10 of the Civil Union Act. The Marriage Act, by contrast, often confines ceremonies to public offices, private homes, or religious buildings as per Section 29 of the Marriage Act.

Importantly, all legal consequences of a marriage under the Marriage Act apply to civil unions as stated in Section 13 of the Civil Union Act. This would include aspects such as patrimonial consequences, inheritance rights, as well as spousal benefits. It must be noted that a person may only be party to one union at a time, thus prohibiting someone in a civil partnership from simultaneously being married under the Marriage Act or the Recognition of Customary Marriages Act, and vice versa.

The above showcases that couples today have the freedom to choose the legislative framework that best aligns with their personal, legal, or religious preferences, which ensures dignity and equality in the legal recognition of their relationships. If you are intending to conclude a marriage or civil partnership, it is important to know and understand your position and options in law. 

Reference List:
 Marriage Act, 1961 (Act 25 of 1961)
 Civil Union Act, 2006 (Act 17 of 2006)
 Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC)


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