The solemnisation and registration of civil marriages are governed by the Marriage Act, 1961 (Act No. 25 of 1961), hereinafter referred to as "the Act", and the Regulations issued in terms of the Act.
Only marriage officers authorised in terms of Act No. 25 of 1961 to perform marriages may do so. Presently civil marriages are solemnised at offices of the Department of Home Affairs and at churches with authorised marriage officers.
Place of marriage, witnesses
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.
Prospective marriage couples
Prospective parties to a marriage should ensure that they are allowed to marry; that they understand the legal consequences of a marriage, particularly that marriages in South Africa are automatically in community of property, unless a valid antenuptial contract has been entered into before the marriage; and that their marriage will comply with all the legal requirements for a valid marriage. Should they be unsure of any of these, legal counsel should be sought before the marriage is entered into.
Solemnisation: documents to be presented
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 BI-31 may be furnished in lieu of identity documents 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 spouses 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.
After solemnisation of the marriage, both parties to the marriage, the two witnesses and the marriage officer must sign the marriage register, upon which the marriage officer must issue the parties with a marriage certificate (BI-27) free of charge.
Registration and certificates
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 (NPR). All subsequent issues of marriage certificates are subject to completion of an application BI-130 and payment of a prescribed fee of R10-00. A full (unabridged) certificate may also be applied for. Application form BI-130 must be completed and a prescribed fee of R50-00 is payable.
Applications for marriage certificates should be lodged at your nearest Home Affairs office if applying from within South Africa and at the nearest South African Mission or Consulate if applying from abroad (applications from abroad may take longer depending on the different diplomatic bag dispatch periods).
Consent to marriage of a minor
For purposes of the Marriage Act, 1961 (Act No. 25 of 1961) 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 on form BI-32, to the marriage.
- If the minor is a child born out of wedlock, only the mothers written consent (BI-32) is required.
- If one parent has been granted sole guardianship of the minor, only that parents written consent (BI-32) is required. If the minor is in the care of a legal guardian, only the guardians written consent (BI-32) 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 (Section 25 of Act 25 of 1961).
- Should the minors 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. (Section 25(4) of Act 25 of 1961). 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 (Section 26 of Act 25 of 1961). In terms of section 26(2) 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 voidable, in other words valid until declared null and void by the High Court. Section 24A of Act 25 of 1961 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.
Review of Marriage Act, 1961
The Department of Home Affairs requested the South African Law Commission in 1996 to conduct an in-depth investigation into the different marriage systems in South Africa and to review the Marriage Act, 1961 with a view to harmonising the different systems.
In this regard the Law Commission has already finished their investigation into customary marriages and as a result of which the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998) was passed by Parliament. The Act came into operation on 15 November 2000.
The investigation into the review of the Marriage Act, 1961 has already reached the final reporting stage and the Final Report is expected to be published soon.
The Law Commission also has a Project Team working on the issue of religious law marriages, and also one on domestic partnerships which includes the issue of same sex unions.