Summary of the Marriage Act, no. 25 of 1961 (With Amendments)

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This Act sets out the requirements for the solemnisation and registration of civil marriages in South Africa. It was amended in 1997 by the Marriage Extension Act to extend to the whole of the country. It is also affected by the Recognition of Customary Marriages Act and the recent Civil Union Act of 2006.

Contents

[edit] Who Can Conduct a Marriage?

Only authorised marriage officers may perform marriages and they must sign a form stating that they are entitled to perform marriages. Civil marriages are solemnised at offices of the Department of Home Affairs and at churches with authorised marriage officers. It is an offence to pretend to be an authorised marriage officer. A marriage officer will not solemnise a marriage if the couple cannot produce identity documents.

Marriage officers who are also ministers of religion are allowed to refuse to conduct a marriage for religious reasons.

[edit] Who Can Get Married?

Certain categories of persons are not allowed to marry: persons of the same sex are prohibited from marrying, although they are allowed to seek a civil union, according to the Civil Union Act of 2006. This Act grants them the same legal status as married couples.

Minors cannot marry, unless the prescribed consent to the marriage has been given.

Persons already married are also not allowed to marry. Bigamy is a punishable offence in South Africa. Such marriages are considered to be null and void.

In addition, a man may not marry any person mentioned in column one, and a woman may not marry any person mentioned in column two in the following table:

One Two
MotherFather
DaughterSon
Father’s motherFather's father
Mother’s motherMother's father
Son’s daughterSon's son
Daughter’s daughterDaughter's son
SisterBrother
Wife’s motherHusband's father
Wife’s daughterHusband's son
Father’s wifeMother's husband
Son’s wifeDaughter's husband
Father’s father’s wifeFather's mother's husband
Mother’s father’s wifeMother's mother's husband
Wife’s father’s motherHusband's father's father
Wife’s mother’s mother Husband's mother's father
Wife’s son’s daughter Husband's son's son
Wife’s daughter’s daughter Husband's daughter's son
Son’s son’s wifeSon's daughter's husband
Daughter’s son’s wifeDaughter's daughter's husband
Father’s sisterFather's brother
Mother’s sisterMother's brother
Brother’s daughterBrother's son
Brother’s daughter’s daughterBrother's brother's son
Sister’s daughterSister's son
Sister’s daughter’s daughterSister's son's son
Sister’s son’s daughterSister's daughter's son

[edit] When Is a Minor Allowed to Marry?

For purposes of the Marriage Act, a minor is a person under 21 years who has not been married before. The following requirements apply:

  • Where both parents are alive, and neither of the parents has sole guardianship of the minor, both parents must consent, in writing, to the marriage.
  • If the minor is a child born out of wedlock, only the mother’s written consent is required.
  • If one parent has been granted sole guardianship of the minor, only that parent’s written consent is required.
  • If the minor is in the care of a legal guardian, only the guardian’s written consent is necessary.
  • If a parent whose consent is legally required cannot be found to grant consent, or is legally incompetent to do so, application to a commissioner of child welfare may be made for consent to the marriage.
  • Should the minor’s parents, and/or a commissioner of child welfare refuse to grant consent, the minor may apply to a Judge of the High Court for consent. The Judge will not grant consent unless there is sufficient evidence that the marriage is in the interest of the child and that consent has been unreasonably refused.

Boys under 18 and girls under 15, in addition to the consent of the parents or guardian, as the case may be, also require the consent of the Minister of Home Affairs. The Minister may, upon application, also condone a marriage which required his or her consent and was contracted without such consent.

A marriage contracted without the legally required consent of the parents or guardian is valid until declared null and void by the High Court. The Act stipulates that the parents or guardian may, before the minor turns 21 and within six weeks of the date on which the marriage first came to their knowledge, apply to the High Court for dissolution of the marriage. The minor may apply before he or she turns 21, or within three months after turning 21.

[edit] Where Can a Couple Get Married?

In terms of the Act, a marriage must be conducted in a church or another building used for religious services, or in a public office or private house, with open doors, and in the presence of the parties to the marriage and at least two witnesses. (However, in the case of serious illness or injuries, the marriage may take place in the hospital or facility concerned.)

[edit] What Is Required to Make the Marriage Valid?

On the day of the marriage, the following documentation must be presented to the marriage officer by the couple:
  • Their identity documents. If they never had identity documents, an affidavit may be provided instead and, if their births are registered, also their birth certificates. Foreigners must present their passports.
  • If minors, the written consent as prescribed.
  • If divorced, the final decree of divorce. If for any sound reason a person is unable to produce a decree of divorce or if a person was divorced in a foreign country and cannot obtain a decree of divorce, an affidavit by the person concerned is required to the effect that he/she is legally divorced, and stating the name of the court which granted the divorce and the date on which it was granted.
  • If widowed, the deceased spouse’s death certificate. If a death certificate is not available the person concerned is required to submit an affidavit confirming the death of the deceased spouse and stating the name of the deceased and the date of death.

[edit] The Marriage Formula

If the marriage formula of a particular religion is approved by the Minister of Home Affairs, it may be used to solemnise the marriage. If the formula has not been approved, then the following questions must be asked:

"Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?"

Once these questions have been asked to both parties and answered in the affirmative, the officer must then solemnise the marriage with the following words: "I declare that A.B. and C.D. here present have been lawfully married."

[edit] Signing the Marriage Register

After solemnisation of the marriage, both parties to the marriage, two witnesses and the marriage officer must sign the marriage register, upon which the marriage officer must issue the parties with a marriage certificate.

[edit] Registration of the Marriage

After the marriage, the marriage officer must submit the marriage register to the nearest Home Affairs office for recording of the marriage particulars in the National Population Register.

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