Marriage
Three parallel regimes govern marriage, among them the Civil Union Act 2006, which opened it to same-sex couples.
Marriage is governed by three parallel regimes — the Marriage Act, the Civil Union Act 2006 which opened marriage to same-sex couples, and the Recognition of Customary Marriages Act. South Africa was the fifth country in the world and remains the only African country to recognise same-sex marriage.
Key points
| Age | 18; below that requires ministerial and parental consent, now tightly restricted |
|---|---|
| Polygamy | Civil marriage is monogamous, but polygynous customary marriages are recognised under the Recognition of Customary Marriages Act. |
| Same-sex marriage | Available under the Civil Union Act since 2006 |
| Customary marriages | Recognised and registrable, including polygynous marriages subject to a court-approved contract |
| Property regime | In community of property by default unless an antenuptial contract is signed before the wedding |
| Muslim marriages | Progressively recognised through Constitutional Court rulings |
| Three statutes | Marriage Act, Civil Union Act and Recognition of Customary Marriages Act |
| Antenuptial contract | Must be signed before the wedding, by a notary |
In practice
- Sign the antenuptial contract before the wedding — afterwards it requires a court application.
- Register a customary marriage promptly; proof becomes difficult once witnesses disperse.
Worth knowing
Without an antenuptial contract you marry in community of property, which means one spouse's debts become the other's. This is the single most consequential default in South African law.
The general article: Marriage · Compare with another country
Partnerships and cohabitation
No general cohabitation statute exists, but the Constitutional Court has let a surviving life partner inherit on intestacy and claim maintenance.
South Africa has no general cohabitation statute, but the courts have closed the worst gaps. In Bwanya (2021) the Constitutional Court held that a surviving life partner may inherit on intestacy and claim maintenance from the estate. A domestic partnership bill has been pending for years. Universal partnership claims and cohabitation agreements are the main practical tools.
Key points
| Status | Recognised by statute in some of these jurisdictions, not in others |
|---|---|
| Property | Claims generally rest on proving financial or non-financial contribution |
| Maintenance | Available only where a statute provides for it |
| Inheritance | A partner rarely inherits without a will, unless legislation says otherwise |
| Children | Their rights depend on parentage, not on the parents' marital status |
| Registration of customary marriage | Often the simplest way to convert a de facto union into recognised rights |
| No general statute | Life partnerships are not regulated by a single law |
| Court-made rights | The Constitutional Court has extended intestate succession and maintenance to permanent life partners |
| Cohabitation agreement | Enforceable and strongly advised |
| Universal partnership | Can be proved to claim a share of assets, but requires evidence |
In practice
- Put a cohabitation agreement in writing, covering property, contributions and separation.
- Keep evidence of joint contribution to any asset — a universal partnership claim depends on it.
Where to go
- Legal aid schemes, law clinics and women's rights organisations.
Worth knowing
Rights for life partners have come from constitutional litigation rather than legislation, so they are patchy. An agreement remains the only reliable protection.
The general article: Partnerships and cohabitation · Compare with another country
Same-sex marriage
The Constitutional Court held in Fourie in December 2005 that excluding same-sex couples from marriage was unconstitutional, and Parliament responded with the Civil Union Act of 2006. South Africa's 1996 Constitution was the first in the world to prohibit discrimination on grounds of sexual orientation. Adoption is open, the parentage of children born through assisted reproduction is recognised, and surrogacy is regulated by the Children's Act.
South Africa reached marriage equality through its constitution rather than through public opinion, which is why the law arrived well ahead of society. Twenty years on, the statutes remain a model for the continent and the enforcement record remains the problem — a distinction worth keeping in mind before drawing conclusions from the legal position alone.
Key points
| Marriage | Civil Union Act 2006, following the Fourie judgment of 2005 |
|---|---|
| Constitution | First in the world to prohibit discrimination on grounds of sexual orientation |
| Parenthood | Both parents recognised where the Children's Act requirements are met |
| Surrogacy | Regulated by the Children's Act, with a court-confirmed agreement |
| Objecting officers | The conscience clause for marriage officers was removed in 2020 |
| Discrimination | Equality Act, plus hate crime legislation |
In practice
- Since 2020 no Home Affairs office may turn a couple away: the conscience clause for marriage officers has been repealed.
- A surrogacy agreement must be confirmed by the High Court before conception, not afterwards.
- A South African marriage is recognised across the EU and in most countries that have opened marriage.
- Violence, including so-called corrective rape, remains a serious problem despite the legal framework.
Cost and coverage
The marriage itself costs a modest Home Affairs fee. Surrogacy requires High Court confirmation and legal representation, which is the substantial expense.
Recent changes
The conscience clause allowing individual marriage officers to refuse was removed in 2020, and Home Affairs must now ensure that every office can solemnise a civil union.
Where to go
- Department of Home Affairs, for the marriage and the certificate.
- High Court, for confirmation of a surrogacy agreement.
Worth knowing
The gap between law and daily life is the defining feature here: the legal framework is among the strongest anywhere, and the levels of violence are among the highest.
Frequently asked questions
Can a Home Affairs official refuse?
Not since 2020. The provision that allowed individual marriage officers to object on grounds of conscience was repealed, and the department must ensure each office can solemnise. If you are turned away, ask for the office manager and record the refusal in writing.
How does surrogacy work?
Through a written agreement confirmed by the High Court before conception, under the Children's Act. Commercial surrogacy is prohibited; reasonable expenses may be reimbursed. Once confirmed, the commissioning parents are the legal parents from birth — an unusually clear framework.
The general article: Same-sex marriage · Compare with another country
Religious ceremony
South Africa recognises marriages under the Marriage Act 1961, solemnised by a designated marriage officer including religious ministers; civil unions under the Civil Union Act 2006; and customary marriages under the Recognition of Customary Marriages Act 1998. Muslim marriages were long unrecognised; in 2022 the Constitutional Court confirmed that this was unconstitutional, and legislative reform to consolidate marriage law has followed.
Key points
| Marriage Act 1961 | Designated marriage officers, including religious ministers |
|---|---|
| Civil Union Act 2006 | Available to all couples; marriage officers may no longer refuse on personal grounds |
| Customary marriages | Recognised and registrable under the 1998 Act |
| Muslim marriages | Non-recognition held unconstitutional in 2022; reform under way |
| Registration | With the Department of Home Affairs |
| Antenuptial contract | Must be signed before the marriage to avoid community of property |
| Designated marriage officers | Religious officers are designated by the Department of Home Affairs |
| Civil Union Act | State officers may no longer refuse on grounds of conscience |
| Customary marriage registration | Within three months, though late registration is accepted |
In practice
- Confirm the religious officer's designation with Home Affairs before the wedding.
Recent changes
The Constitutional Court's 2022 confirmation of the invalidity of non-recognition of Muslim marriages set in motion the consolidation of South African marriage law.
Where to go
- Department of Home Affairs.
- Legal Aid South Africa.
- Women's Legal Centre.
Worth knowing
Without an antenuptial contract signed before the wedding, you are automatically married in community of property: every debt of one spouse becomes a debt of both. The Constitutional Court's 2022 ruling on Muslim marriages set consolidation of marriage law in motion. Until it completes, check which statute applies to your ceremony.
The general article: Religious ceremony · Compare with another country
Wedding customs and ceremonies
Most couples go through two weddings. First the lobola, bride wealth negotiated between delegations of the two families — historically in cattle, now often in cash — followed by the traditional ceremony, such as the Zulu umabo or umembeso, where gifts are presented and the bride is received into her new family. The white wedding follows, in church or at a venue.
In most Black South African communities the marriage begins with lobola: negotiations between delegations from the two families, conducted with formality and often in writing, settling what the groom's family will give. Only once lobola is agreed does the traditional wedding take place, frequently followed by a white wedding weeks or months later. A customary marriage is legally valid and must be registered with Home Affairs.
Key points
| Lobola | Negotiated by delegations, in writing, over one or more meetings |
|---|---|
| Umembeso | Presentation of gifts to the bride's family |
| Umabo | The bride is received into her new family, with gifts for its members |
| White wedding | Church or venue ceremony, often months later |
| Customary marriage | Legally recognised, and must be registered |
| Two dresses | Traditional attire for one ceremony, white for the other |
| Polygyny | Recognised for customary marriages |
In practice
- A customary marriage is a real marriage and must be registered — many couples forget this.
- Lobola negotiations are conducted by delegations, never by the couple directly.
- Attire differs by ceremony and by ethnic group: ask what is expected.
- The gap between the two weddings can be long; both are real.
What it costs
Lobola amounts vary widely by community and family, commonly running to tens of thousands of rand. A traditional wedding and a white wedding together frequently exceed R150,000.
Recent changes
The courts have continued to clarify the requirements for a valid customary marriage, including when handing over of the bride is essential, and registration with Home Affairs has been simplified.
Frequently asked questions
Is a customary marriage legally recognised?
Yes, under the Recognition of Customary Marriages Act, provided the requirements of the relevant custom are met, including lobola where it applies. It should be registered with Home Affairs within three months; failure to register does not invalidate it but causes serious practical problems later.
What actually happens in lobola negotiations?
Delegations from the two families meet, usually without the couple present, and negotiate through spokespeople with considerable ceremony. The amount, historically in cattle and now often in money, is agreed and recorded. It is a joining of families, not a purchase — and treating it as a transaction is the mistake foreign partners most often make.
The general article: Wedding customs and ceremonies · Compare with another country
Matrimonial property and inheritance
Marriage is in community of property by default, with an antenuptial contract and the accrual system as the alternative.
South African couples marry in community of property by default — a single joint estate of assets and debts — unless they sign an antenuptial contract before the wedding, usually adopting the accrual system. On death, freedom of testation is broad but tempered by the Maintenance of Surviving Spouses Act and dependants' claims; customary succession was reformed after Bhe struck down male primogeniture.
Key points
| Default regime | In community of property: one joint estate, including debts |
|---|---|
| Antenuptial contract | Must be signed before the wedding; usually with accrual |
| Accrual system | Estates stay separate, growth during the marriage is shared |
| Intestacy | Spouse takes a child's share or a set minimum, whichever is greater |
| Customary succession | Male primogeniture struck down; equal treatment applies |
| Estate duty | Applies above a threshold, with a spousal exemption |
The general article: Matrimonial property and inheritance · Compare with another country
Divorce
The Divorce Act 1979 asks only for irretrievable breakdown, with no fault to prove.
Divorce is governed by the Divorce Act 1979, which requires only irretrievable breakdown — no fault need be proved. Customary and Muslim marriages are also recognised, and the Constitutional Court has progressively extended equal protection to spouses in them.
Key points
| Ground | Irretrievable breakdown; also mental illness or continuous unconsciousness |
|---|---|
| Property | Depends on the matrimonial property system: in community of property by default, or accrual under an antenuptial contract |
| Pension interest | Divisible on divorce |
| Children | Family advocate reports on their best interests |
| Maintenance | Rehabilitative or permanent, depending on circumstances |
| Irretrievable breakdown | The only ground; no waiting period is required |
| Property regime decides | In community of property, the estate is simply halved |
| Pension interest | Divisible at divorce, but must be claimed in the order |
| Mediation | Family advocate involvement is standard where children are affected |
In practice
- Name the pension fund and the exact wording in the order, or the fund will refuse to pay.
- Check your marital regime on the marriage certificate before negotiating anything.
Worth knowing
Pension funds reject divorce orders that do not identify the fund and use the statutory wording. Have the clause drafted by someone who knows the requirements.
General sources
- gov.za — official government portal
- South African Human Rights Commission — constitutional rights body