Marriage Act, 1961 (South Africa)
Encyclopedia
The Marriage Act, 1961 is an act
of the Parliament of South Africa
governing the solemnisation and registration of marriages in South Africa
. It does not deal with the dissolution of marriages, which is governed by the Divorce Act, 1979, or with matrimonial property regimes
and the financial consequences of marriage, which are governed by the Matrimonial Property Act, 1984. Some issues relating to marriage remain governed by the Roman-Dutch common law because they have never been addressed by Parliament.
The Marriage Act is not the only law under which a marriage may be contracted. The Recognition of Customary Marriages Act, 1998 recognises marriages under African customary law
as valid marriages, though they are not legally identical to marriages under the Marriage Act. The Civil Union Act, 2006
allows for same-sex marriages
which are legally equivalent to marriages under the Marriage Act.
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.
(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"; this restriction is presumably unconstitutional but has not been challenged. (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.
When a person who is not legally a marriage officer acts as one, under a good faith
belief that he or she is one, the Minister of Home Affairs can retrospectively validate the marriages performed by him or her. Similarly, when a marriage is performed by a person who is not a marriage officer, but the spouses had a good faith belief that he or she was one, the Minister may retrospectively validate the marriage.
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 marriage
s 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:
When each of them has answered "Yes," and have joined hands, the official announces:
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.
, 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 may be unconstitutional but has not yet been challenged.)
400 and imprisoned for up to one year. A marriage officer who violates other provisions of the Marriage Act can be fined up to R
100. A person who makes a false statement for the purpose of marriage can be sentenced as if he or she had committed perjury
.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of South Africa
Parliament of South Africa
The Parliament of South Africa is South Africa's legislature and under the country's current Constitution is composed of the National Assembly and the National Council of Provinces....
governing the solemnisation and registration of marriages in South Africa
Marriage in South Africa
Marriage in South Africa exists in a number of different forms, as a result of the diversity of religions and cultures in the country. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples...
. It does not deal with the dissolution of marriages, which is governed by the Divorce Act, 1979, or with matrimonial property regimes
Matrimonial regime
Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate, and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the...
and the financial consequences of marriage, which are governed by the Matrimonial Property Act, 1984. Some issues relating to marriage remain governed by the Roman-Dutch common law because they have never been addressed by Parliament.
The Marriage Act is not the only law under which a marriage may be contracted. The Recognition of Customary Marriages Act, 1998 recognises marriages under African customary law
Customary law in South Africa
South African customary law refers to that usually uncodified legal system developed and practiced by the indigenous communities of South Africa...
as valid marriages, though they are not legally identical to marriages under the Marriage Act. The Civil Union Act, 2006
Civil Union Act, 2006
The Civil Union Act, 2006 is a South African Act of Parliament which legalised same-sex marriage. It was enacted as Parliament's response to 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...
allows for same-sex marriages
Same-sex marriage in South Africa
Same-sex marriage has been legal in South Africa since 30 November 2006, when the Civil Union Act, 2006 came into force, having been passed by Parliament earlier that month. A ruling by the Constitutional Court on 1 December 2005 had given Parliament one year to make same-sex marriage legal...
which are legally equivalent to marriages under the Marriage Act.
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
Union of South Africa
The Union of South Africa is the historic predecessor to the present-day Republic of South Africa. It came into being on 31 May 1910 with the unification of the previously separate colonies of the Cape, Natal, Transvaal and the Orange Free State...
, 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
Banns of marriage
The banns of marriage, commonly known simply as the "banns" or "bans" are the public announcement in a Christian parish church of an impending marriage between two specified persons...
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 AffairsMinister of Home Affairs (South Africa)
The Minister of Home Affairs is the minister in the Cabinet of South Africa with responsibility for the Department of Home Affairs. The position includes responsibility for immigration, refugee and asylum policy, for the civil registry, and for the issuing of identity documents and passports.-List...
(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
Clergy
Clergy is the generic term used to describe the formal religious leadership within a given religion. A clergyman, churchman or cleric is a member of the clergy, especially one who is a priest, preacher, pastor, or other religious professional....
as marriage officers. The text of the Marriage Act limits these appointments to Christian, Jewish or Muslim clergy or clergy of "an Indian religion"; this restriction is presumably unconstitutional but has not been challenged. (Ministers of other religions can be appointed marriage officers under the Civil Union Act
Civil Union Act, 2006
The Civil Union Act, 2006 is a South African Act of Parliament which legalised same-sex marriage. It was enacted as Parliament's response to 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...
.) A religious marriage officer may refuse to perform a marriage that does not comply with his or her religion's doctrines.
When a person who is not legally a marriage officer acts as one, under a good faith
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
belief that he or she is one, the Minister of Home Affairs can retrospectively validate the marriages performed by him or her. Similarly, when a marriage is performed by a person who is not a marriage officer, but the spouses had a good faith belief that he or she was one, the Minister may retrospectively validate the marriage.
Marriage procedure
Each party to the marriage must provide the marriage officer with his or her South African identity document or a sworn affidavitAffidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
detailing his or her identity. Since 1970, it has not been necessary to publish banns
Banns of marriage
The banns of marriage, commonly known simply as the "banns" or "bans" are the public announcement in a Christian parish church of an impending marriage between two specified persons...
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 marriage
Proxy marriage
A proxy wedding or is a wedding in which the bride or groom is not physically present, usually being represented instead by another person...
s 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:
When each of them has answered "Yes," and have joined hands, the official announces:
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 majorityAge of majority
The age of majority is the threshold of adulthood as it is conceptualized in law. It is the chronological moment when minors cease to legally be considered children and assume control over their persons, actions, and decisions, thereby terminating the legal control and legal responsibilities of...
, which was reduced from 21 to 18 by the Children's Act, 2005
Children's Act, 2005
The Children's Act, 2005 is an act of the Parliament of South Africa that consolidates and reforms the law on matters related to children...
, 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
High Court of South Africa
The High Courts are superior courts of law in South Africa. The courts were created in 1996 on the adoption of the Constitution of South Africa, and inherited the jurisdiction of the provincial and local divisions of the former Supreme Court of South Africa...
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 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 RSouth African rand
The rand is the currency of South Africa. It takes its name from the Witwatersrand , the ridge upon which Johannesburg is built and where most of South Africa's gold deposits were found. The rand has the symbol "R" and is subdivided into 100 cents, symbol "c"...
400 and imprisoned for up to one year. A marriage officer who violates other provisions of the Marriage Act can be fined up to R
South African rand
The rand is the currency of South Africa. It takes its name from the Witwatersrand , the ridge upon which Johannesburg is built and where most of South Africa's gold deposits were found. The rand has the symbol "R" and is subdivided into 100 cents, symbol "c"...
100. A person who makes a false statement for the purpose of marriage can be sentenced as if he or she had committed perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
.
Amendments
- The Marriage Amendment Act, 1964 and the Marriage Amendment Act, 1968 were both technical amendments relating to the publication of banns of marriageBanns of marriageThe banns of marriage, commonly known simply as the "banns" or "bans" are the public announcement in a Christian parish church of an impending marriage between two specified persons...
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 (as it then was).
- 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.
External links
- Text of the Marriage Act, 1961, as amended, at Wikisource
WikisourceWikisource is an online digital library of free content textual sources on a wiki, operated by the Wikimedia Foundation. Its aims are to host all forms of free text, in many languages, and translations. Originally conceived as an archive to store useful or important historical texts, it has...