The Marriage Act, 1961 (Act No. 25 of 1961) is an act of the

Parliament of South Africa The Parliament of the Republic of South Africa is South Africa's legislature; under the present Constitution of South Africa, the bicameral Parliament comprises a National Assembly and a National Council of Provinces. The current twenty-seve ...

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 Divorce (also known as dissolution of marriage) is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the ...

, or with matrimonial property regimes and the financial consequences of marriage, which are governed by the

Matrimonial Property Act, 1984 Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between t ...

. 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 The Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998) is a South African statute in terms of which marriages performed under African customary law, including polygynous marriages, are recognised as legal marriages. It also refo ...

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 The Civil Union Act, 2006 (Act No. 17 of 2006) is an act of the Parliament of South Africa which legalised same-sex marriage. It allows two people, regardless of gender, to form either a marriage or a civil partnership. The act was enacted as a co ...

allows for ''inter alia''

same-sex marriages Same-sex marriage, also known as gay marriage, is the marriage of two people of the same sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being Mexico, constituting ...

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 The Union of South Africa ( nl, Unie van Zuid-Afrika; af, Unie van Suid-Afrika; ) was the historical predecessor to the present-day Republic of South Africa. It came into existence on 31 May 1910 with the unification of the Cape, Natal, Trans ...

, 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 The banns of marriage, commonly known simply as the "banns" or "bans" (from a Middle English word meaning "proclamation", rooted in Frankish and thence in Old French), are the public announcement in a Christian parish church, or in the town cou ...

were abolished.

Marriage officers

A marriage may be performed only by a marriage officer. All

magistrates The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judici ...

and

justices of the peace A justice of the peace (JP) is a judicial officer of a lower or ''puisne'' court, elected or appointed by means of a commission ( letters patent) to keep the peace. In past centuries the term commissioner of the peace was often used with the sa ...

are automatically marriage officers. The Minister of Home Affairs (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 An interior ministry (sometimes called a ministry of internal affairs or ministry of home affairs) is a government department that is responsible for internal affairs. Lists of current ministries of internal affairs Named "ministry" * Ministry ...

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". (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. The Minister of Home Affairs can retrospectively validate the marriages performed by a person who is not legally a marriage officer who acts in

good faith In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...

or if the spouses had a good faith belief that marriage officer could legally perform the marriage.

Marriage procedure

Each party to the marriage must provide the marriage officer with his or her South African identity document or an affidavit detailing his or her identity. Since 1970, it has not been necessary to publish banns or obtain a

licence A license (or licence) is an official permission or permit to do, use, or own something (as well as the document of that permission or permit). A license is granted by a party (licensor) to another party (licensee) as an element of an agreeme ...

, 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 A proxy wedding or proxy marriage is a wedding in which one or both of the individuals being united are not physically present, usually being represented instead by other persons. If both partners are absent a double proxy wedding occurs. 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.

Marriageable age

A person under the age of majority, 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 The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judici ...

(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 predates the Constitution of the Republic of South Africa and 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 R400 and imprisoned for up to one year. A marriage officer who violates other provisions of the Marriage Act can be fined up to R100. A person who makes a false statement for the purpose of marriage can be sentenced as if he or she had committed perjury.

Amendments

* The Marriage Amendment Act, 1963 and the Marriage Amendment Act, 1968 were both technical amendments relating to the publication of

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 South West Africa ( af, Suidwes-Afrika; german: Südwestafrika; nl, Zuidwest-Afrika) was a territory under South African administration from 1915 to 1990, after which it became modern-day Namibia. It bordered Angola (Portuguese colony before 1 ...

(now the independent country of

Namibia Namibia (, ), officially the Republic of Namibia, is a country in Southern Africa. Its western border is the Atlantic Ocean. It shares land borders with Zambia and Angola to the north, Botswana to the east and South Africa to the south and ea ...

). * 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. * The Marriage Act Extension Act, 1997 extended the act to apply in the territory of the former bantustans, superseding their former separate marriage laws.

External links

* Text of the Marriage Act, 1961, as amended, at

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