Same-Sex Marriages and Civil Unions
South Africa was the first country in the world to safeguard sexual orientation as a human right in its Constitution, which forbids discrimination on the basis of sex, gender or sexual orientation. These equality rights formed the basis for a series of court decisions granting specific rights to couples in long-term same-sex relationships.
The current legal position
The Civil Union Act (Act 17 of 2006), which provides for opposite-sex and same-sex civil marriages, religious marriages and civil partnerships. A person may only be married under one of these laws at any given time.
Amendment
The Civil Union Amendment Act No. 8 of 2020 which provides for opposite-sex and same-sex civil marriages, religious marriages and civil partnerships. Section 6 of the Civil Union Act No. 17 of 2006 has been repealed by the Civil Union Amendments Act No. 8 of 2020. Section 6 of the Civil Union Act 17 of 2006, which previously allowed a marriage officer to inform the Home Affairs Minister of his or her objection to officiate same-sex unions on the grounds of conscience, religion or belief, now prohibits marriage officers or Magistrates from refusing to solemnise a civil union between same-sex couples. A person may only be married under one of these laws at any given time.
Solemnisation
Marriages and civil partnerships must be solemnised by an authorised marriage officer. Government officials (primarily magistrates and Home Affairs civil servants) who are appointed as marriage officers under the Marriage Act are also able to solemnise marriages in terms of the Civil Union Act. Religious leaders may also be appointed as marriage officers under the Civil Union Act, but religious leaders appointed under the Marriage Act are not automatically able to solemnise marriages in terms of the Civil Union Act.
Amendment
Marriages and civil partnerships must be solemnised by an authorised marriage officer. Government officials (primarily magistrates and Home Affairs civil servants) who are appointed as marriage officers under the Marriage Act are also able to solemnise marriages in terms of the Civil Union Amendment Act No. 8 of 2020. The Home Affairs Minister must ensure that there is a marriage officer available to solemnise a civil union at every office. As part of the amended Bill, the Department of Home Affairs will be given a transitional period of 24 months within which to train those officials who had previously been granted an exception by the Minister. Whilst the transitional period is in effect, a marriage officer, other than those granted exemption, must be available to solemnise a civil union at every Department of Home Affairs office to ensure that no same-sex couple is turned away.
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