The Implications of the Change of the Marriage Act of 2006
There are two Government Acts governing a marriage union in South Africa, the Marriage Act of 1961 and the Civil Union Act of 2006 which was specifically introduced to make provision for same-sex couples to form a legally recognised union.
On 20 October 2020, the Civil Union Act of 2006 was amended under the hand of the President of South Africa. This meant that for the first time in South African History, marriage officers could no longer refuse to marry a couple on the grounds of conscience. However, this change does not affect marriage officers of a religious organisation which has previously applied “in writing to the Minister to be designated as a religious organisation that may solemnise marriages in terms of this Act” (CUA 2006 5.1).
The change to the Civil Union Act of 2006 was documented in Government Gazette 43832 and repeals only section 6 of the Act. Section 6 of the Civil Union Act of 2006 states that “A marriage officer, other than a marriage officer referred to in section 5 [emphasis added], may in writing inform the Minister that he or she objects on the ground of conscience, religion and belief to solemnising a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnise such civil union.” It was this and only this one sentence that was removed. Section 5, though remains unchanged and pertains to the “Designation of ministers of religion and other persons attached to religious denomination or organisation as marriage officers” which retains all the legislation and privileges previously enjoyed specifically, “in accordance with this Act, and according to the rites of that religion” (CUA 2006 5.4).
Thus, there is no change in the law for ministers of previously approved religious organisations by the amendment of this Act and it is likely that most marriage officers have been granted a licence to perform a marriage under the Marriage Act of 1961 not under the Civil Union Act of 2006.
Thus, “this only enables you to solemnise, for a legal point of view, heterosexual marriages. If you want to solemnise a same-sex marriage then you would need a separate licence under the Civil Union Act and therefore if you were asked if you will solemnise a same-sex union, then you’re very simple answer would be that you are not licensed to do so” Michael Swain, Executive Director of Freedom of Religion South Africa, update on the Civil Union Act , Video via WhatsApp.