Marriage Act, 1961/1972-04-12
Act
To consolidate and amend the laws relating to the solemnization of marriages and matters incidental thereto.
(English text signed by the Governor-General.)
(Assented to 19th April, 1961.)
as amended by
Marriage Amendment Act, No. 11 of 1964
Black Laws Amendment Act, No. 42 of 1964
Marriage Amendment Act, No. 19 of 1968
Marriage Amendment Act, No. 51 of 1970
Marriage Amendment Act, No. 26 of 1972
Be it enacted by the Queen’s Most Excellent Majesty, the Senate and the House of Assembly of the Union of South Africa, as follows:―
1. In this Act, unless the context otherwise indicates―
“Bantu Affairs Commissioner” includes an Additional Bantu Affairs Commissioner, an Assistant Bantu Affairs Commissioner, a Native Commissioner, an Additional Native Commissioner and an Assistant Native Commissioner;
“magistrate” includes an additional and an assistant magistrate;
“marriage officer” means any person who is a marriage officer by virtue of the provisions of this Act;
“Minister” means the Minister of the Interior or, in relation to any person who is a Bantu as defined in the Population Registration Act, 1950 (Act No. 30 of 1950), or is a native (excluding a Nama) as defined in section 25 of the Native Administration Proclamation, 1928 (Proclamation No. 15 of 1928), of South-West Africa, the Minister of Bantu Administration and Development;
“prescribed” means prescribed by this Act or by regulation made under this Act;
“prior law” means any law repealed by this Act or the Marriage Amendment Act, 1970, or any provision of any law declared by proclamation under section 39 (5) no longer to apply.
2. (1) Every magistrate, every special justice of the peace and every Bantu Affairs Commissioner shall by virtue of his office and so long as he holds such office, be a marriage officer for the district or other area in respect of which he holds office.
(2) The Minister and any officer in the public service authorized thereto by him may designate any officer or employee in the public service or the diplomatic or consular service of the Union to be, by virtue of his office and so long as he holds such office a marriage officer, either generally or for any specified population group or class of persons or country or area.
3. (1) The Minister and any officer in the public service authorized thereto by him may designate any minister of religion of, or any person holding a responsible position in, any religious denomination or organization to be, so long as he is such a minister or occupies such position, a marriage officer for the purpose of solemnizing marriages according to Christian, Jewish or Mohammedan rites or the rites of any Indian religion.
(2) A designation under sub-section (1) may further limit the authority of any such minister of religion or person to the solemnization of marriages―
4. Every designation of a person as a marriage officer shall be by written instrument and the date as from which it shall have effect and any limitation to which it is subject shall be specified in such instrument.
5. (1) Subject to the provisions of subsection (3), any person who, at the commencement of this Act, or of the Marriage Amendment Act, 1970, is under the provisions of any prior law authorized to solemnize any marriages, shall continue to have authority to solemnize such marriages as if such law had not been repealed, but shall exercise such authority in accordance with the provisions of this Act.
(2) Any such person shall be deemed to have been designated as a marriage officer under this Act.
(3) Any such person whose authority to solemnize any marriages in the Republic is at the commencement of the Marriage Amendment Act, 1970, not limited to a specified area, shall be deemed to have been designated as a marriage officer for solemnizing marriages in the territory of South-West Africa also, and any such person whose authority to solemnize any marriages in the said territory is at such commencement not limited to a specified area, shall be deemed to have been designated as a marriage officer for solemnizing marriages in the Republic also.
6. (1) Whenever any person has acted as a marriage officer during any period or within any area in respect of which he was not a marriage officer under this Act or any prior law, and the Minister or any officer in the public service authorized thereto by the Minister is satisfied that such person did so under the bona fide belief that he was a marriage officer during that period or within that area, he may direct in writing that such person shall for all purposes be deemed to have been a marriage officer during such period or within such area, duly designated as such under this Act or such law, as the case may be.
(2) Any marriage solemnized during such period or within such area by any person who is in terms of sub-section (1) to be deemed to have been duly designated as a marriage officer in respect thereof, shall, provided such marriage was in every other respect solemnized in accordance with the provisions of this Act or any prior law, as the case may be, and there was no lawful impediment thereto, be as valid and binding as it would have been if such person had been duly designated as a marriage officer in respect of such period or such area.
(3) Nothing in sub-section (1) contained shall be construed as relieving any person in respect of whom a direction has been issued thereunder, from the liability to prosecution for any offence committed by him.
7. Any minister of religion who before or after the commencement of this Act was or is designated as a marriage officer while a minister of the “Nederduitse Gereformeerde Kerk in Suid-Afrika, Kaap”, or of the “Nederduitse Gereformeerde Kerk van Natal”, or of the “Nederduitse Gereformeerde Kerk in die Oranje-Vrystaat”, or of the former “Nederduitse Hervormde of Gereformeerde Kerk van Suid-Afrika, Transvaal”, or of the “Nederduitse Gereformeerde Kerk van Transvaal”, shall as from the date of such designation but subject to the provisions of this Act be deemed to have been or to be a marriage officer while he remained or remains a minister of any of the said churches.
8. (1) If a religious denomination or organization changes the name whereby it was known or amalgamates with any other religious denomination or organization, such change in name or amalgamation shall have no effect on the designation of any person as a marriage officer by virtue of his occupying any post or holding any position in any such religious denomination or organization.
(2) If a religious denomination or organization in such circumstances as are contemplated in sub-section (1) changes the name whereby it was known or amalgamates with any other religious denomination or organization, it shall immediately advise the Minister thereof.
9. (1) The Minister or any officer in the public service authorized thereto by him may, on the ground of misconduct or for any other good cause, revoke in writing the designation of any person as a marriage officer or the authority of any other person to solemnize marriages under this Act, or in writing limit in such respect as he may deem fit the authority of any marriage officer or class of marriage officers to solemnize marriages under this Act.
(2) Any steps taken by any officer in the public service under sub-section (1) may be set aside by the Minister.
10. (1) Any person who is under the provisions of this Act authorized to solemnize any marriages in any country outside the Union―
(2) Any marriage so solemnized shall for all purposes be deemed to have been solemnized in the province of the Union in which the male party thereto is domiciled.
11. (1) A marriage may be solemnized by a marriage officer only.
(2) Any marriage officer who purports to solemnize a marriage which he is not authorized under this Act to solemnize or which to his knowledge is legally prohibited, and any person not being a marriage officer who purports to solemnize a marriage, shall be guilty of an offence and liable on conviction to a fine not exceeding four hundred rand or, in default of payment, to imprisonment for a period not exceeding twelve months, or to both such fine and such imprisonment.
(3) Nothing in sub-section (2) contained shall apply to any marriage ceremony solemnized in accordance with the rites or formularies of any religion, if such ceremony does not purport to effect a valid marriage.
12. No marriage officer shall solemnize any marriage unless―
22. If in the case of any marriage solemnized before the commencement of the Marriage Amendment Act, 1970, the provisions of any law relating to the publication of banns or notice of intention to marry or to the issue of special marriage licences, or the applicable provisions of any law of a country outside the Union relating to the publication of banns or the publication of notice of intention to marry were not strictly complied with but such marriage was in every other respect solemnized in accordance with the provisions of this Act or, as the case may be, a former law, that marriage shall, provided there was no other lawful impediment thereto and provided such marriage has not been dissolved or declared invalid by a competent court, and provided further that neither of the parties to such marriage has after such marriage and during the life of the other, already lawfully married another, be as valid and binding as it would have been if the said provisions had been strictly complied with.
23. (1) Any person desiring to raise any objection to any proposed marriage shall lodge such objection in writing with the marriage officer who is to solemnize such marriage.
(2) Upon receipt of any such objection the marriage officer concerned shall inquire into the grounds of the objection and if he is satisfied that there is no lawful impediment to the proposed marriage, he may solemnize the marriage in accordance with the provisions of this Act.
(3) If he is not so satisfied he shall refuse to solemnize the marriage.
24. (1) No marriage officer shall solemnize a marriage between parties of whom one or both are minors unless the consent to the party or parties which is legally required for the purpose of contracting the marriage has been granted and furnished to him in writing.
(2) For the purposes of sub-section (1) a minor does not include a person who is under the age of twenty-one years and previously contracted a valid marriage which has been dissolved by death or divorce.
25. (1) If a commissioner of child welfare as defined in section one of the Children’s Act, 1960 (Act No. 33 of 1960), is after proper inquiry satisfied that a minor who is resident in the district or area in respect of which he holds office has no parent or guardian or is for any good reason unable to obtain the consent of his parents or guardian to enter into a marriage such commissioner of child welfare may in his discretion grant written consent to such minor to marry a specified person, but such commissioner of child welfare shall not grant his consent if the minor is such a pupil or child as is mentioned in paragraph (a) of sub-section (1) of section fifty-nine of the said Act or if one or other parent of the minor whose consent is required by law or his guardian refuses to grant consent to the marriage.
(2) A commissioner of child welfare shall, before granting his consent to a marriage under sub-section (1), enquire whether it is in the interests of the minor in question that the parties to the proposed marriage should enter into an antenuptial contract, and if he is satisfied that such is the case he shall not grant his consent to the proposed marriage before such contract has been entered into, and shall assist the said minor in the execution of the said contract.
(3) A contract so entered into shall be deemed to have been entered into with the assistance of the parent or guardian of the said minor.
(4) If the parent, guardian or commissioner of child welfare in question refuses to consent to a marriage of a minor, such consent may on application be granted by a judge of the Supreme Court of South Africa: Provided that such a judge shall not grant such consent unless he is of the opinion that such refusal of consent by the parent, guardian or commissioner of child welfare is without adequate reason and contrary to the interests of such minor.
26. (1) No boy under the age of eighteen years and no girl under the age of fifteen years shall be capable of contracting a valid marriage except with the written permission of the Minister, which he may grant in any particular case in which he considers such marriage desirable: Provided that such permission shall not relieve the parties to the proposed marriage from the obligation to comply with all other requirements prescribed by law: Provided further that such permission shall not be necessary if by reason of any such other requirement the consent of a judge or court having jurisdiction in the matter is necessary and has been granted.
(2) If any person referred to in sub-section (1) who was not capable of contracting a valid marriage without the written permission of the Minister in terms of this Act or a prior law, contracted a marriage without such permission and the Minister considers such marriage to be desirable and in the interests of the parties in question, he may, provided such marriage was in every other respect solemnized in accordance with the provisions of this Act or, as the case may be, any prior law, and there was no other lawful impediment thereto, direct in writing that it shall for all purposes be a valid marriage.
(3) If the Minister so directs it shall be deemed that he granted written permission to such marriage prior to the solemnization thereof.
27. If parties appear before a marriage officer for the purpose of contracting a marriage with each other and such marriage officer reasonably suspects that either of them is of an age which debars him or her from contracting a valid marriage without the consent or permission of some other person, he may refuse to solemnize a marriage between them unless he is furnished with such consent or permission in writing or with satisfactory proof showing that the party in question is entitled to contract a marriage without such consent or permission.
28. Any legal provision to the contrary notwithstanding it shall be lawful for―
29. (1) A marriage officer may solemnize a marriage at any time on any day of the week but shall not be obliged to solemnize a marriage at any other time than between the hours of eight in the morning and four in the afternoon.
(2) A marriage officer shall solemnize any marriage in a church or other building used for religious service, or in a public office or private dwelling-house, with open doors and in the presence of the parties themselves and at least two competent witnesses, but the foregoing provisions of this subsection shall not be construed as prohibiting a marriage officer from solemnizing a marriage in any place other than a place mentioned therein if the marriage must be solemnized in such other place by reason of the serious or longstanding illness of, or serious bodily injury to, one or both of the parties.
(3) Every marriage―
shall, provided such marriage has not been dissolved or declared invalid by a competent court and provided further that neither of the parties to such marriage has after such marriage and during the life of the other, already lawfully married another, be as valid and binding as it would have been if it had been solemnized in a place appointed therefor by the applicable provisions of the prior law or, as the case may be, of this Act.
(4) No person shall under the provisions of this Act be capable of contracting a valid marriage through any other person acting as his representative.
30. (1) In solemnizing any marriage the marriage officer shall put the following questions to each of the parties separately, each of whom shall reply thereto in the affirmative:
“Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?”,
and thereupon the parties shall give each other the right hand and the said marriage officer shall declare the marriage solemnized in the following words:
“I declare that A.B. and C.D. here present have been lawfully married.”
(2) Subject to the provisions of subsection (1), a marriage officer, if he is a minister of religion or a person holding a responsible position in a religious denomination or organization, may in solemnizing a marriage follow the rites usually observed by his religious denomination or organization.
(3) If the provisions of this section or any former law relating to the questions to be put to each of the parties separately or to the declaration whereby the marriage shall be declared to be solemnized or to the requirement that the parties shall give each other the right hand, have not been strictly complied with owing to―
but such marriage has in every other respect been solemnized in accordance with the provisions of this Act or, as the case may be, a former law, that marriage shall, provided there was no other lawful impediment thereto and provided further that such marriage, if it was solemnized before the commencement of the Marriage Amendment Act, 1970 (Act No. 51 of 1970), has not been dissolved or declared invalid by a competent court and neither of the parties to such marriage has after such marriage and during the life of the other, already lawfully married another, be as valid and binding as it would have been if the said provisions had been strictly complied with.
31. Nothing in this Act contained shall be construed so as to compel a marriage officer who is a minister of religion or a person holding a responsible position in a religious denomination or organization to solemnize a marriage which would not conform to the rites, formularies, tenets, doctrines or discipline of his religious denomination or organization.
32. (1) No marriage officer may demand or receive any fee, gift or reward, for or by reason of anything done by him as marriage officer in terms of this Act: Provided that a minister of religion or a person holding a responsible position in a religious denomination or organization may, for or by reason of any such thing done by him, receive―
(2) Any marriage officer who contravenes the provisions of sub-section (1) shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred rand or, in default of payment, to imprisonment for a period not exceeding six months.
33. After a marriage has been solemnized by a marriage officer, a minister of religion or a person holding a responsible position in a religious denomination or organization may bless such marriage according to the rites of his religious denomination or organization.
34. Nothing in this Act contained shall prevent―
provided the exercise of such authority is not in conflict with the civil rights and duties of any person.
35. Any marriage officer who knowingly solemnizes a marriage in contravention of the provisions of this Act shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred rand or, in default of payment, to imprisonment for a period not exceeding six months.
36. Any person who makes for any of the purposes of this Act, any false representation or false statement knowing it to be false, shall be guilty of an offence and liable on conviction to the penalties prescribed by law for perjury.
37. If any person contravenes any provision of this Act in any country outside the Union the Minister of Justice shall determine which court in the Union shall try such person for the offence committed thereby, and such court shall thereupon be competent so to try such person, and for all purposes incidental to or consequential on the trial of such person, the offence shall be deemed to have been committed within the area of jurisdiction of such court.
38. (1) The Minister may make regulations as to―
and, generally, as to any matter which by this Act is required or permitted to be prescribed or which he considers it necessary or expedient to prescribe in order that the purposes of this Act may be achieved or that the provisions of this Act may be effectively administered.
(2) Such regulations may prescribe penalties for a contravention thereof, not exceeding, in the case of a fine, fifty rand or, in the case of imprisonment, a period of three months.
(3) Different and separate regulations may be made under subsection (1) in respect of different areas or in respect of persons belonging to different population groups, and regulations made under subsection (1) (b) shall be made in consultation with the Minister of Finance.
38A. (1) The State President may by proclamation in the Gazette assign the administration of any other law relating to marriages, to the Minister of Bantu Administration and Development, in respect of any Bantu.
(2) The State President may from time to time by like proclamation revoke or amend any such proclamation.
39. (1) Subject to the provisions of sub-sections (2) to (5) inclusive, the laws specified in the Schedule are hereby repealed to the extent set out in the fourth column thereof, except in so far as they apply in the territory of South-West Africa.
(2) Anything done under any provision of a law repealed by sub-section (1) shall be deemed to have been done under the corresponding provision of this Act (if any).
(3) Any marriage which is validated by or is valid in terms of any law repealed by sub-section (1) shall not be effected by such repeal.
(4) Any provision of a law repealed by sub-section (1) which applies only in respect of non-white persons or a particular class of non-white persons shall, notwithstanding the provisions of this Act, but subject to the provisions of sub-section (5), continue to apply in respect of any Bantu and any Asiatic in respect of whom it is applicable.
(5) The Governor-General may by proclamation in the Gazette declare that any provision of a law referred to in sub-section (4) shall cease to apply in respect of the persons in question or any class of the persons in question, and as from the date specified in such proclamation, such provision shall cease so to apply.
39A. (1) This Act and any amendment thereof shall apply also in the territory of South-West Africa, including the Eastern Caprivi Zipfel.
(2) A reference in this Act to “Union” or “province of the Union” shall be deemed to include a reference to the territory of South-West Africa.
(3) The Marriage Ordinance, 1963 (Ordinance No. 33 of 1963), sections 16 and 17 of the General Law Amendment Ordinance, 1965 (Ordinance No. 36 of 1965), and the Marriage Amendment Ordinance, 1967 (Ordinance No. 18 of 1967), of the territory of South-West Africa are hereby repealed.
(4) Anything done under any provision of a law repealed by subsection (3) shall be deemed to have been done under the corresponding provision of this Act (if any).
(5) Any marriage which is validated by or is valid in terms of any law repealed by subsection (3) shall not be affected by such repeal.
40. This Act shall be called the Marriage Act, 1961, and shall come into operation on a date to be fixed by the Governor-General by proclamation in the Gazette.
Schedule.
Laws Repealed.
| Province or Union. | No. and Year of Law. | Title or Subject Matter. | Extent of Repeal. |
| Cape of Good Hope. | Marriage Order in Council, 7th September, 1838. | Amendment of Marriage Laws. | The whole. |
| Order in Council, 20th February, 1839. | Construction of Marriage Order in Council, 7th September, 1838, in certain respects. | The whole. | |
| Order in Council, 3rd April, 1840. | Amendment of Marriage Order in Council, 7th September, 1838. | The whole. | |
| Ordinance No. 4 of 1848. | Ordinance for rendering legal certain Marriages supposed to be invalid. | The whole. | |
| Act No. 13 of 1857. | Act for Removing all Doubts regarding the Validity of the Marriages of certain Military Settlers. | The whole. | |
| Act No. 16 of 1860. | “Marriage Act, 1860”. | The whole. | |
| Act No. 9 of 1882. | “The Marriage Licence Act, 1882”. | The whole. | |
| Act No. 40 of 1892. | “The Marriage Law Amendment Act, 1892”. | The whole. | |
| Act No. 11 of 1906. | “The Marriage Law Amendment Act, 1906.”. | The whole. | |
| Natal. | Ordinance No. 17 of 1846. | “Ordinance to amend the Law regarding marriages within the District of Natal”. | The whole. |
| Law No. 2 of 1876. | “To provide for the signing of Marriage Licences”. | The whole. | |
| Law No. 19 of 1881. | “To provide for the appointment of Marriage Officers for the Solemnization of Marriages of persons professing the Jewish faith, and of persons professing the Mohammedan faith”. | The whole. | |
| Law No. 46 of 1887. | “To regulate the Marriage of Bantu by Christian Rites”. | The whole, subject to the provisions of sub-section (4) of section thirty-nine of this Act. | |
[Title of Law No. 46 of 1887 amended by s. 100 of Act No. 42 of 1964.]
| |||
| Law No. 7 of 1889. | “The Marriage Licence Law, 1889”. | The whole. | |
| Law No. 25 of 1891. | “Indian Immigration Law, 1891”. | Sections sixty-five to seventy-two inclusive, seventy-five and eighty-one, subject to the provisions of sub-section (4) of section thirty-nine of this Act. | |
| Act No. 45 of 1898 | “To repeal and re-enact with certain amendments, Act No. 15 of 1897, entituled ‘Act for removing a certain Restriction upon Marriage within the Colony of Natal’ ”. | The whole. | |
| Act No. 44 of 1903. | “To amend the Law relating to Marriages of Bantu by Christian Rites”. | The whole, subject to the provisions of sub-section (4) of section thirty-nine of this Act. | |
[Title of Act No. 44 of 1903 amended by s. 100 of Act No. 42 of 1964.]
| |||
| Orange Free State. | Law No. 22 of 1898. | “Over Assistent Landdrosten”. | The whole. |
| Law No. 26 of 1899. | “De Huwelijkswet”. | The whole. | |
| Ordinance No. 27 of 1902. | “Validation of Marriages Ordinance, 1902”. | The whole. | |
| Ordinance No. 31 of 1903. | “Marriage (Prohibited Degrees) Ordinance, 1903”. | The whole. | |
| Transvaal. | Law No. 3 of 1871. | “Huwelijks Ordonnantie”. | The whole. |
| Volksraad Resolution, 15th May, 1883, Art. 74. | Legalization of certain Marriages. | The whole. | |
| Volksraad Resolution, 7th May, 1885, Art. 53. | Legalization of certain Marriages. | The whole. | |
| First Volksraad Resolution, 10th December, 1896, Art. 2286. | “Recht tot huwelijksbevestiging door de Hollandsche Consuls en Consulaire ambtenaren in de Z.A.R.”. | The whole. | |
| Law No. 3 of 1897. | “Regelende de huwelijken van Kleurlingen binnen de Zuid-Afrikaansche Republiek”. | The whole, subject to the provisions of sub-section (4) of section thirty-nine of this Act. | |
| Proclamation No. 6 of 1900. | Bantu Marriages by Christian Rites. | The whole, subject to the provisions of sub-section (4) of section thirty-nine of this Act. | |
[Title of Proclamation No. 6 of 1900 amended by s. 100 of Act No. 42 of 1964.]
| |||
| Proclamation No. 2 of 1901. | Amendment of Marriage Laws as to officer granting special licences. | The whole. | |
| Proclamation No. 25 of 1902. | Amending Law No. 3 of 1897. | The whole. | |
| Proclamation No. 31 of 1902. | “Legalization of Marriages Proclamation, 1902”. | The whole. | |
| Ordinance No. 26 of 1902. | “Legalization of Marriages Ordinance 1902”. | The whole. | |
| Ordinance No. 29 of 1903. | Legalization of Marriages of Coloured Persons Ordinance, 1903. | The whole. | |
| Ordinance No. 39 of 1904. | Marriage Law Amendment Ordinance 1904. | The whole. | |
| Ordinance No. 33 of 1905. | The Legalization of Marriages Ordinance 1905. | The whole. | |
| Act No. 13 of 1909. | Marriage Law Amendment Act 1909. | The whole. | |
| Union. | Act No. 20 of 1913. | Marriage Laws Amendment Act, 1913. | The whole. |
| Act No. 43 of 1916. | Marriage Officers Act, 1916. | The whole. | |
| Act No. 11 of 1920. | Natal and Transvaal Marriage Law Amendment Act, 1920. | The whole. | |
| Act No. 17 of 1921. | Marriage Law Amendment Act, 1921. | The whole. | |
| Act No. 41 of 1927. | Orange Free State Marriage Law Amendment Act, 1927. | The whole. | |
| Act No. 7 of 1934. | Births, Marriages and Deaths Registration Amendment Act, 1934. | Sections ten and eleven. | |
| Act No. 8 of 1935. | Marriage Law Amendment Act, 1935. | The whole. | |
| Act No. 21 of 1943. | Bantu Administration (Amendment) Act, 1943. | Section twelve. | |
[Title of Act No. 21 of 1943 amended by s. 100 of Act No. 42 of 1964.]
| |||
| Act No. 13 of 1945. | Publication of Banns Amendment Act, 1945. | The whole. | |
| Act No. 32 of 1952. | General Law Amendment Act, 1952. | Section seven. | |
| Act No. 25 of 1954. | Marriage Officers Amendment Act, 1954. | The whole. | |
| Act No. 68 of 1957. | General Law Amendment Act, 1957. | Section eight. | |