Quick answer: Yes. Same-sex marriage is legal in South Africa. The Civil Union Act 17 of 2006 allows two people, regardless of sex, to enter a civil union as either a marriage or a civil partnership. The Act commenced on 30 November 2006 after the Constitutional Court’s marriage-equality judgment in Fourie.
Which same-sex marriage or civil union issue do you need help with?
- If you want to marry or register a civil partnership, start with the Civil Union Act 17 of 2006 and the Department of Home Affairs.
- If the relationship is ending, read our guide to civil union divorce in South Africa.
- If you need marital-regime or antenuptial advice before the ceremony, use SDLAW’s antenuptial contract service.
- If children or adoption are involved, the Children’s Act and best-interests principle must be considered carefully.
Official legal sources
The key sources are the Civil Union Act 17 of 2006, the Constitutional Court’s Fourie marriage-equality archive, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act, and the Children’s Act 38 of 2005.
Same-sex marriage – South Africa was the fifth country in the world to legalise them.
In 2006 the Civil Union Act (Act No. 17 of 2006) came into effect and made same-sex marriage legal in South Africa. This means that, in terms of the Act, two people of any sex can be married or enter into a civil partnership.
Like any other marriage, a same-sex marriage or civil union must be solemnised by an authorised marriage officer in South Africa. Furthermore, the marriage must be registered through the Department of Home Affairs.
Couples entering into same-sex marriage enjoy the benefits of married life and agree to uphold their individual responsibilities towards each other within this legal framework. Additionally, they enjoy the rights that are accorded to all married couples, such as inheritance and end-of-life decision-making. Equally, on divorce, same-sex couples go through the same painful process as heterosexual couples.
DISCRIMINATION
Section 9 of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act (Act No. 4 of 2000) clearly state that same-sex individuals and couples may not be discriminated against.
South African law recognises same-sex civil unions and gives them legal consequences under the Civil Union Act. If a civil union breaks down, the divorce route is explained here: civil union divorce in South Africa.
Adoption
This legal recognition extends to the adoption of children. Adoption is governed by the Children’s Act 2005, which does not prohibit a gay or lesbian adoption. The Act allows children to be adopted jointly by:
- a husband and wife
- partners in a permanent domestic life-partnership
- other persons sharing a common household and forming a permanent family unit
Want help or advice on same-sex marriage?
If you are thinking of marriage, whether you are a heterosexual or same-sex couple, Simon Dippenaar & Associates Inc. can help you decide on the marital regime that is right for you. We are a firm of specialised divorce lawyers and family attorneys in Cape Town and Gauteng. Contact us on +27 (0) 86 099 5146 or sdippenaar@sdlaw.co.za.
Visit sdlaw.co.za/divorce-attorney for more.
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