Civil Union Act
Civil Unions
Marriage equality, delivered by statute after Fourie.
The road to the Act
In Minister of Home Affairs v Fourie the Constitutional Court held that the common-law definition of marriage and the Marriage Act's exclusion of same-sex couples were unconstitutional, and gave Parliament a year to fix it. The result was the Civil Union Act 17 of 2006.
What the Act provides
Two persons of any sex (18 or older — unlike the Marriage Act, the Civil Union Act makes no provision for minors to enter a union, even with consent) may register a civil union. They must choose to designate it a "marriage" or a "civil partnership" during the ceremony. Whichever they choose, the legal consequences are identical to those of a civil marriage — same personal and proprietary consequences, dissolved under the Divorce Act.
The "separate but equal" critique
Critics argue that maintaining the Marriage Act exclusively for opposite-sex couples while creating a separate Act for same-sex couples produces a "separate but equal" framework that perpetuates othering and stigma. The proposed Marriage Bill [B43-2023], which would fold both Acts into a single statute, is partly a response to this critique.
State vs religious marriage officers
The original Section 6 of the Civil Union Act allowed state marriage officers (magistrates, Home Affairs officials) to object on grounds of conscience to solemnising same-sex unions — leading to reports that by 2017 nearly 50% of Home Affairs offices had no official willing to do so. The Civil Union Amendment Act 8 of 2020 repealed s 6: state officers may no longer refuse. However, Section 5 was retained — religious marriage officers (designated ministers of religion) may still decline to solemnise unions that conflict with their religious organisation's tenets.
Key Rule
The Civil Union Act 17 of 2006 (after Fourie) lets any two adults (18+, no minor exception) register a marriage or civil partnership with identical consequences to a civil marriage. State officers may no longer refuse (s 6 repealed by Amendment Act 8 of 2020); religious officers may still refuse (s 5 retained).
Common Mistake
Saying same-sex couples marry "under the Marriage Act" or that ALL marriage officers may now refuse. State officers lost the right to refuse in 2020 (s 6 repealed); only religious marriage officers retain it (s 5).
Leading Cases
Minister of Home Affairs v Fourie2006 (1) SA 524 (CC)The exclusion of same-sex couples from marriage was unconstitutional; Parliament was ordered to remedy it, producing the Civil Union Act.
Facts. A same-sex couple challenged the common-law definition of marriage and the Marriage Act for excluding them from marriage.
Legal question. Is the exclusion of same-sex couples from marriage constitutional?
Judgment. The Constitutional Court declared the exclusion unconstitutional and suspended the declaration to allow legislative reform.
Significance. Directly produced the Civil Union Act 17 of 2006 and marriage equality in South Africa.
Exam tip. Cite as the source of the Civil Union Act; note same-sex couples marry under that Act, not the Marriage Act.
RCMA
Customary Marriages
Recognised, potentially polygynous, and now on an equal footing.
Recognition & requirements
The Recognition of Customary Marriages Act 120 of 1998 gives full recognition to customary marriages. Section 3 requires that both parties are 18 or older, both consent, and the marriage is negotiated and entered into or celebrated in accordance with customary law. Lobolo is not strictly a statutory requirement but is usually present. Marriages should be registered, but non-registration does not invalidate them.
Proprietary consequences
A customary marriage is in community of property (with the Matrimonial Property Act applying) unless the spouses conclude an ANC. In Gumede v President of the RSA the Constitutional Court struck down provisions that denied wives in old (pre-Act) monogamous customary marriages equal proprietary rights.
Polygyny
Customary marriages may be polygynous. A husband who wishes to take a further wife must apply to court under s 7(6) to approve a written contract regulating the future matrimonial property system. In Ramuhovhi v President the Court secured equal proprietary rights for wives in polygynous marriages; MM v MN (Mayelane v Ngwenyama) held that the consent of the first wife is required for the validity of a subsequent customary marriage where the community's living customary law demands it. The court applies "living" (actual current practice), not "official" (ossified colonial-era codification) customary law.
Conversion to civil marriage — the property trap (s 10)
Spouses in a valid customary marriage may conclude a civil marriage with each other under s 10 of the RCMA. However, this is not a "reset" of the matrimonial property system. The property system was established at the time of the customary marriage (typically in community of property). A purported ANC signed on the morning of the civil ceremony is invalid — the parties are already married and the ANC cannot alter their existing regime. To change the system, they would need a High Court application under s 21 of the Matrimonial Property Act before the civil ceremony (or separately). Practical tip: a couple doing the civil wedding purely for ceremonial reasons is still bound by the customary marriage's property system.
Key Rule
Under the RCMA 120 of 1998: both 18+, both consent, celebrated per customary law (living, not ossified law). In community unless an ANC. Further wife → s 7(6) court-approved contract; first wife's consent needed per living law (MM v MN). Civil conversion (s 10) does NOT reset property system.
Common Mistake
Thinking a customary marriage is invalid if it is not registered, or if no lobolo was paid. Registration is not a validity requirement, and lobolo is not a statutory requirement under s 3. Also: a civil wedding after a customary marriage does not change the matrimonial property system.
Leading Cases
Gumede v President of the RSA2009 (3) SA 152 (CC)Struck down provisions denying wives in old monogamous customary marriages equal ownership and control of marital property.
Facts. A wife in an old (pre-Act) monogamous customary marriage was denied equal rights over marital property under the RCMA's transitional provisions.
Legal question. Do provisions denying wives in old customary marriages equal proprietary rights violate the Constitution?
Judgment. The Constitutional Court struck down the offending provisions, equalising proprietary rights.
Significance. A landmark securing equality for wives in monogamous customary marriages.
Exam tip. Use for equality in customary-marriage property; distinguish Ramuhovhi, which addressed polygynous marriages.
Ramuhovhi v President of the RSA2018 (2) SA 1 (CC)Secured equal proprietary rights for wives in polygynous customary marriages, remedying the RCMA's treatment of pre-Act marriages.
Facts. Wives in old polygynous customary marriages lacked equal rights to marital property under the RCMA.
Legal question. Are wives in old polygynous customary marriages entitled to equal proprietary rights?
Judgment. The Constitutional Court declared the provision invalid and imposed an interim regime pending legislation.
Significance. Extends Gumede's equality to polygynous customary marriages.
Exam tip. Pair with Gumede (monogamous) and Mayelane v Ngwenyama (first wife's consent) for the customary-marriage property picture.
Mayelane v Ngwenyama2013 (4) SA 415 (CC)Under Tsonga customary law the consent of the first wife is a requirement for the validity of a subsequent polygynous customary marriage. (Also cited as MM v MN.)
Facts. The validity of a second (polygynous) Tsonga customary marriage was challenged where the first wife had not consented. Also cited as MM v MN — some academic case notes use the anonymised form, but it is the same judgment.
Legal question. Is the consent of the first wife required for a valid subsequent customary marriage?
Judgment. The Constitutional Court held the second marriage invalid for want of the first wife's consent.
Significance. Establishes the first wife's consent as a validity requirement for further customary marriages, and models the development of living customary law under s 39(2).
Exam tip. Cite as Mayelane v Ngwenyama (you may see it as MM v MN). Combine with s 7(6) RCMA (court-approved contract) when discussing further customary wives. Note the holding was expressly developed for Tsonga customary law — do not state it as a blanket rule for all customary systems without saying so.
Religious marriages
Muslim & Hindu Marriages
From non-recognition to constitutional protection.
The old non-recognition
Historically, Muslim and Hindu religious marriages were not recognised as marriages because they were potentially polygynous and so regarded as contrary to public policy (Ismail v Ismail). Spouses therefore lacked the protections of marriage.
Piecemeal recognition
Courts then extended specific protections. In Daniels v Campbell the word "spouse" in the Intestate Succession Act and the Maintenance of Surviving Spouses Act was read to include a party to a monogamous Muslim marriage. In Hassam v Jacobs this was extended to polygynous Muslim marriages for intestate succession.
The constitutional breakthrough
In Women's Legal Centre Trust v President of the RSA the Constitutional Court declared the State's failure to recognise Muslim marriages unconstitutional and ordered interim relief (applying aspects of the Divorce Act to Muslim marriages) pending comprehensive legislation. The proposed Marriage Bill [B43-2023] aims to consolidate all South African marriage law (civil, customary, religious, secular) under a single Act, set a uniform minimum age of 18 for all spouses, and expand the categories of marriage officers — curing the constitutional fragmentation.
Key Rule
Muslim/Hindu marriages moved from non-recognition (Ismail) → targeted recognition (Daniels, Hassam) → a declaration that non-recognition of Muslim marriages is unconstitutional (Women's Legal Centre Trust).
Common Mistake
Stating flatly that Muslim marriages "are not recognised". That is the old law — after Women's Legal Centre Trust the non-recognition of Muslim marriages was declared unconstitutional, with interim protections in place.
Leading Cases
Ismail v Ismail1983 (1) SA 1006 (A)The old position: a potentially polygynous Muslim marriage was not recognised as a valid marriage (contra bonos mores).
Facts. A party sought to enforce consequences of a Muslim marriage as if it were a civil marriage.
Legal question. Was a potentially polygynous Muslim marriage recognised as a valid marriage?
Judgment. The Appellate Division declined to recognise the Muslim marriage as a valid marriage.
Significance. States the old non-recognition position, later eroded by Daniels, Hassam and Women's Legal Centre Trust.
Exam tip. Use as the starting point of the recognition story; then trace the progressive case law.
Daniels v Campbell NO2004 (5) SA 331 (CC)Read "spouse" in the Intestate Succession and Maintenance of Surviving Spouses Acts to include a party to a monogamous Muslim marriage.
Facts. The survivor of a monogamous Muslim marriage claimed as a "spouse" under the Intestate Succession Act and the Maintenance of Surviving Spouses Act.
Legal question. Does "spouse" in those Acts include a party to a monogamous Muslim marriage?
Judgment. The Constitutional Court read "spouse" to include the Muslim widow, granting her the statutory protections.
Significance. A key step in the piecemeal recognition of Muslim marriages for specific statutory purposes.
Exam tip. Note it covers monogamous Muslim marriages; Hassam extended this to polygynous ones.
Hassam v Jacobs NO2009 (5) SA 572 (CC)Extended intestate-succession protection to spouses in polygynous Muslim marriages.
Facts. A survivor of a polygynous Muslim marriage was excluded from intestate-succession protection afforded to "spouses".
Legal question. Do spouses in polygynous Muslim marriages qualify for intestate-succession protection?
Judgment. The Constitutional Court extended intestate-succession protection to polygynous Muslim spouses.
Significance. Extends Daniels to polygynous Muslim marriages for intestate succession.
Exam tip. Pair with Daniels; both feed into the broader recognition confirmed in Women's Legal Centre Trust.
Women's Legal Centre Trust v President of the RSA2022 (5) SA 323 (CC)Declared the failure to recognise Muslim marriages unconstitutional and ordered interim relief pending legislation.
Facts. The State's ongoing failure to recognise Muslim marriages left spouses (especially women and children) without the protections of marriage law.
Legal question. Is the failure to recognise Muslim marriages as valid marriages unconstitutional?
Judgment. The Constitutional Court confirmed the invalidity and ordered detailed interim measures pending comprehensive reform.
Significance. The systemic declaration governing Muslim marriages. Since then, the Divorce Amendment Act 1 of 2024 (in force May 2024) has cured the Divorce Act defects by extending that Act to Muslim marriages directly. The Marriage Act defects remain outstanding: the Court extended the suspension to 27 June 2026 in Speaker of the National Assembly v Women's Legal Centre Trust [2024] ZACC 18 to allow the Marriage Bill to be processed.
Exam tip. This is the leading authority — avoid saying Muslim marriages are simply "not recognised". Keep the two statutes apart in an answer: the Divorce Act side has been fixed by the Divorce Amendment Act 1 of 2024; the Marriage Act side is still awaiting legislation under an extended suspension.
Cohabitation
Domestic & Life Partnerships
Living together is not marriage — but the law is catching up.
No "common-law marriage"
South African law has no "common-law marriage". Cohabitation, however long, does not create a reciprocal duty of support or automatic proprietary consequences. Partners must protect themselves by contract (a cohabitation agreement) or by proving a universal partnership (societas universorum bonorum) to share what they built together.
The Volks line
In Volks v Robinson the Constitutional Court held that the survivor of a cohabitation relationship was not a "spouse" for the Maintenance of Surviving Spouses Act — the distinction between married and unmarried couples was not unfair discrimination, because the couple could have married.
The Bwanya shift
In Bwanya v Master of the High Court the Constitutional Court departed from Volks, extending intestate succession and maintenance claims to a survivor of a permanent life partnership in which the partners had undertaken to support each other (and intended to marry). For same-sex partners before civil unions, Gory v Kolver had already extended intestate succession.
Key Rule
Cohabitation ≠ marriage: no automatic support or property sharing. Protect via contract or a universal partnership. Bwanya now extends intestate succession and maintenance to permanent life partners, departing from Volks.
Common Mistake
Telling clients that living together for years creates a "common-law marriage" with support rights. It does not — rights depend on contract, a proven universal partnership, or the developing case law (Bwanya).
Leading Cases
Volks v Robinson2005 (5) BCLR 446 (CC)A cohabiting survivor was not a "spouse" for the Maintenance of Surviving Spouses Act — the married/unmarried distinction was not unfair discrimination.
Facts. The survivor of a long cohabitation relationship claimed maintenance from her late partner's estate under the Maintenance of Surviving Spouses Act.
Legal question. Is a cohabiting survivor a "spouse" entitled to claim under the Maintenance of Surviving Spouses Act?
Judgment. The Constitutional Court dismissed the claim, upholding the married/unmarried distinction.
Significance. Long the leading (and controversial) authority denying cohabitants marital protections — later departed from in Bwanya.
Exam tip. Contrast sharply with Bwanya, which extended succession and maintenance to permanent life partners.
Bwanya v Master of the High Court2022 (3) SA 250 (CC)Departed from Volks: extended intestate succession and maintenance claims to the survivor of a permanent life partnership with a reciprocal undertaking of support.
Facts. The survivor of a permanent opposite-sex life partnership, in which the couple had undertaken to support each other and intended to marry, was excluded from intestate succession and maintenance claims.
Legal question. May a survivor of a permanent heterosexual life partnership claim intestate succession and maintenance?
Judgment. The Constitutional Court departed from Volks and extended the statutory protections to qualifying life partners.
Significance. A major shift recognising permanent life partnerships for succession and maintenance.
Exam tip. Cite as the modern position departing from Volks; note the requirement of a reciprocal undertaking of support.
Gory v Kolver NO2007 (4) SA 97 (CC)Extended intestate succession to the surviving partner of a same-sex permanent life partnership (before civil unions were available).
Facts. A surviving same-sex partner sought to inherit intestate from his deceased partner before civil unions were available.
Legal question. Does the surviving partner of a same-sex permanent life partnership inherit intestate?
Judgment. The Constitutional Court extended intestate succession to the surviving same-sex partner.
Significance. Recognised same-sex partners for intestate succession before the Civil Union Act; a forerunner to Bwanya.
Exam tip. Use for the same-sex-partnership succession line; note it predates civil unions.