On 20 October 2020, parliament repealed section 6 of the Civil Union Act that previously permitted a marriage officer to object to solemnise a civil union between persons of the same sex on the ground of conscience.
Thiruna Naidoo of the Centre for Human Rights stated that that the amendment was a positive step toward eliminating existing differentiation between marriages and civil union partnerships, reducing discrimination against same-sex relationships and achieving equality for same-sex couples in South Africa.
There are three laws in South Africa that provide for the status of marriage in South Africa. These are the Marriage Act (Act 25 of 1961) which provides for civil or religious opposite-sex marriages; the Recognition of Customary Marriages Act (Act 120 of 1998), which provides for the civil registration of marriages solemnised according to the traditions of indigenous groups; and the Civil Union Act (Act 17 of 2006), which provides for same-sex civil marriages, religious marriages and civil partnerships. A person may only be married under one of these laws at any given time.
The Civil Union Act legalised same-sex marriage recognising that “Marriage is the union of two persons to the exclusion of all others for life.” It thus allows two people, regardless of gender, to form either a marriage or a civil partnership.
A civil union (also known as a civil partnership) is a legally recognized arrangement like marriage, that provides recognition in law for same-sex couples.
Same-sex parties wanting to get married must inform advise the marriage officer whether their civil union should be known as a marriage or a civil partnership and he or she will then solemnise the civil union as a marriage or civil union. The marriage officer then issues the parties with the registration certificate stating that they have ended into a marriage or civil partnership. The marriage officer will then submit the certificate to the Department of Home Affairs to include in the population register the particulars of the marriage or civil union.
If same-sex parties wish to enter into an antenuptial contract before they enter into a civil union, they can request the notary to reflect the proprietary consequences of their intended civil partnership (as opposed to a marriage) in the marriage contract.