The legal framework
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 |
| Adoption | Joint and step-parent adoption available |
| 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- Since 2020 no Home Affairs office may turn a couple away: the conscience clause for marriage officers has been repealed.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.
- South African Human Rights Commission, for discrimination.
- 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.
Official sources and links
- gov.za — official government portal
- South African Human Rights Commission — constitutional rights body