Same-Sex Marriage in South Africa

Abstract

This assignment explores the legal and social evolution of same-sex marriage in South Africa. Additionally, it examines the historical background, legal recognition, challenges faced by same-sex couples both before and after legalisation, and the human rights implications and societal impact of same-sex unions.

INTRODUCTION

A civil marriage in South Africa refers to a legally binding union recognised under the Marriage or Civil Union Act. In 2006, civil marriage was expanded to include same-sex couples, redefining marriage as a legally recognised voluntary union between two people, regardless of gender, to exclude all others (Burnett Same-Sex Marriages In South Africa, 2024). This was made possible through the Civil Union Act, which granted same-sex couples equal rights to marry, adopt, and access spousal benefits (Civil Union Act, 2006). This assignment focuses on the historical context of same-sex marriage in South Africa, its legal milestones, the challenges encountered by same-sex couples, the human rights foundations of the movement, and the broader impact of recognising these unions.

1 Historical Background of Same-Sex Marriages

Same-sex relationships have long existed in various societies, but historically, they were heavily stigmatised and criminalised in South Africa. During apartheid, laws such as the Immorality Amendment Act 57 of 1969 criminalised sexual acts between men, and broader societal norms treated homosexuality as immoral and deviant. The legal system of apartheid did not protect sexual minorities who expressed an erotic attraction to members of the same sex because their sexual orientation differed from the majority norm, which was based on Christian beliefs; homosexual conduct was punished by the law (Henriet de Ru, The recognition of same-sex unions in South Africa, 2009). This means that same-sex couples couldn’t marry each other in the past. In the case of Hyde v Hyde, it was stated that marriage in Christendom is defined as the voluntary union between one man and one woman to the exclusion of all others (Hyde v Hyde).

The common-law offence of sodomy prohibited sexual intimacy between males, and unnatural sexual acts were forbidden in terms of the Immorality Act 5 of 1927 (H de Ru, A historical perspective on the recognition of same-sex unions in South Africa, 19 FUNDAMINA 242 2013). Immorality Amendment Act makes provision in the said Act for a prohibition on the commission at a party of acts between male persons and which are calculated to stimulate sexual passion or to give sexual gratification (Immorality Amendment Act, 1969).  During apartheid, gay and lesbian people suffered a harsh fate, having been categorised as criminals and rejected by society as outcasts (H de Ru, A historical perspective on the recognition of same-sex unions in South Africa, 19 FUNDAMINA 242 2013). The same sex individuals were excluded from legal protections and often lived in secrecy to avoid discrimination or violence.

The turning point came after apartheid ended. South Africa’s 1996 Constitution became the first in the world to prohibit discrimination based on sexual orientation explicitly. This constitutional guarantee laid the groundwork for legal advocacy and reform. The growing Lesbian Gay Bisexual Transgender rights movement in the late 1990s and early 2000s pushed for equality in all aspects of life, including marriage. Despite historical prejudice, the legal environment shifted towards recognition and inclusion.  

2 Legal Recognition

The Preamble to the Act acknowledges that the family law dispensation existing after the commencement of the Constitution of the Republic of South Africa failed to provide for same sex couple to enjoy their status and benefits coupled with the responsibilities that marriage accords to opposite-sex couples (H de Ru, A historical perspective on the recognition of same-sex unions in South Africa, 19 FUNDAMINA 242 2013). In the case of Minister of Home Affairs v Flourie, the Constitutional Court declared the common law definition of marriage to be inconsistent with the Constitution (Minister of Home Affairs v Fourie 2005). The common law definition of marriage did not include same sex marriages. The Court ruled that denying same-sex couples the right to marry was unconstitutional, as it violated the rights to equality and dignity guaranteed by the Constitution (Minister of Home Affairs v Fourie 2005). In addition, the court stated that not providing rights to same sex couples is unconstitutional and discriminatory.

In the case of National Coalition for Gay and Lesbian Equality v Minister of Home Affairs, the Constitutional Court restructured the conformist social order of intimate monogamous relationships and acknowledged the existence of same-sex relationships (National Coalition for Gay and Lesbian Equality v Minister of Home Affairs, 2000).  This decision led to the enactment of the Civil Union Act 17 of 2006, which permits same sex couples to enter a legally recognised civil union (Civil Union Act, 2006). A civil union is now defined as a voluntary union of two persons who are 18 years of age, solemnized and registered in accordance with the procedures mentioned in the Act (H de Ru, A historical perspective on the recognition of same-sex unions in South Africa, 19 FUNDAMINA 242 2013). This Act ensures equal protection between heterosexual and same sex marriages. Section 13(1) of the Civil Union Act states that the legal consequences of a marriage contemplated in the Marriage Act apply to a civil union with such changes as may be required by the context (Civil Union Act, 2006). This means that the legal consequences of opposite- sex marriages are the same as the legal consequences of same sex marriages.

The Act ensures and respects the equality and the dignity of same sex people in South African society. Therefore, same sex marriages are permitted in the Civil Union Act 2006. According to Section 9 of the Constitution, everyone is equal before the law and has the right to equal protection and benefit of the law (Section 9 of the Constitution of the Republic of South Africa, 1996).

3 Challenges Faced by Same-Sex Couples Before and After Recognition

Before legal recognition, same-sex couples faced numerous challenges. Discrimination was evident in the probation of ages that differed from the heterosexual age of consent, which was 16 years and 19 years in the case of same-sex age of consent (Henriet de Ru, The recognition of same-sex unions in South Africa, 2009). Divorce can be complicated for same-sex couples. Same-sex couples may find themselves vulnerable and lacking legal protections (Team Camp, Same-Sex Marriage and Family Law: Current Challenges and Solutions, 2025). 

 Firstly, they were denied legal benefits such as joint adoption, inheritance rights, and spousal healthcare benefits. Same sex couples may face discrimination or limitations in making medical decisions for their partners due to legal recognition issues (Team Camp, Same-Sex Marriage and Family Law: Current Challenges and Solutions, 2025). Many lived under the constant threat of social exclusion, discrimination, and even violence (Pride and Prejudice: Same-Sex Marriage Legalization Announcements and Hate Crimes). The same-sex relationships were hidden due to fear of persecution. The public institutions did not acknowledge such partnerships, leading to legal and emotional insecurity for many couples (Pride and Prejudice: Same-Sex Marriage Legalization Announcements and Hate Crimes).

While legal recognition provided a framework of equality, practical implementation has often been inconsistent. Same-sex people are allowed to register for marriage (South African wedding guide Same-Sex Marriages In South Africa 2006). In addition, many same sex individuals still face societal stigma, particularly in conservative or rural communities where traditional and religious beliefs dominate. Societal attitudes can greatly influence the legal landscape, affecting everything from the enforcement of laws to public support for legislative changes (Team Camp, Same-Sex Marriage and Family Law: Current Challenges and Solutions, 2025). Homophobic attitudes, hate crimes, and family rejection continue to affect many same-sex couples, despite the protection offered by the law.

4 Human Rights of Same-Sex Marriage

The legal recognition of same-sex marriage in South Africa is fundamentally rooted in human rights principles. The right to equality, Section 9 of the Constitution, ensures that no person is unfairly discriminated against based on sexual orientation (Section 9 of the Constitution, Republic of South Africa, 1996). The right to dignity Section 10 of the Constitution recognises the inherent worth of every individual, affirming that same-sex couples deserve the same respect and recognition as heterosexual couples (Section 10 of the Constitution of the Republic of South Africa,1996). These rights ensure that all people, regardless of their sexual orientation, are protected by the Constitution. The South African legal system recognises that denying marriage to same-sex couples undermines their status as equal citizens and infringes on their personal freedoms and dignity.

Article 16 of the Universal Declaration of Human Rights provides that everyone has the right to marry and to find a family, and is entitled to equal rights as to marriage, during marriage, and at the end of the marriage (Universal Declaration of Human Rights, 1948). According to article 16 of the International Covenant on Civil and Political Rights, which supports Universal Declaration of Human Rights, provides that everyone shall have the right to recognition everywhere as a person before the law (International Covenant on Civil and Political Rights, 1966). This protects against discrimination and ensures equal protection according to the Constitution. The Children’s Act allows the joint adoption by same sex couples and equality in family-building processes (Burnett Attorneys, Same-Sex Marriages In South Africa, 2024).

5 Impact of Same-Sex Marriage in South Africa

5.1 Social Impact

The legalization of same-sex marriage has significantly increased the visibility and acceptance of same sex individuals and relationships in South Africa. According to section 9 of the Constitution of the Republic of South Africa, everyone is equal before the law (Section 9 of the Constitution, 1996). Therefore, the act encourages many people to live without fear, fostering a stronger sense of belonging and inclusion within society.

 5.2 Legal Impact

The legal perspective, the recognition of same-sex marriage under section 9 of the Constitution, which advocates for the equality of everyone before the law, has set a powerful precedent for the protection of minority rights in South Africa (Section 9 of the Constitution, 1996). The law has also driven key institutions such as healthcare providers, employers, and educational establishments to ensure they uphold anti-discrimination standards and promote equality. Same sex couples now enjoy equal rights as heterosexual couples.

In terms of the Medical Scheme Act 131 of 1998, it provides that a medical scheme may not be registered if its rules unfairly discriminate against anyone on the grounds of sexual orientation (Medical Scheme Act, 1998). According to section 27 of the Basic Conditions of Employment Act 75 of 1997, an employer is required to give an employee three days paid leave in the event of the death of the employee’s spouse (Basic Conditions of Employment Act, 1997). This Act also includes same sex couples.

5.3 Cultural and Religious Challenges

Many religious and traditional leaders continue to oppose same-sex unions. In some areas, same sex people still face rejection and marginalization (Thomas Same-Sex Marriage and the Threat to Religious Liberty 2008). The beliefs and social norms cannot be changed overnight through legislation alone. As such, ongoing education, advocacy, and meaningful community engagement are essential to achieving broader societal acceptance and transformation. Family expectations can influence cultural identity in same sex marriages by bringing traditional norms and values that may not be in line with partners’ sexual orientation.

CONCLUSION

The legalisation of same-sex marriage in South Africa marks a significant achievement in the journey towards equality and human dignity. Additionally, since the constitutional protection and legal reform, South Africa has provided same sex individuals with the right to love and marry whom they choose. However, the fight for true equality is not over. Legal rights must be accompanied by societal acceptance and practical implementation. The efforts must continue to educate communities, enforce the law, and protect the human rights of all South Africans, regardless of sexual orientation. Only then can the promise of equality in the Constitution be fully realised.

BIBLIOGRAPHY

Books

Section 9 of the Constitution, 1996.

Section 10 of the Constitution, 1996.

Case Laws

Hyde v Hyde.

Minister of Home Affairs v Flourie 2005.

National Coalition for Gay and Lesbian Equality v Minister of Home Affairs, 2000.

Journal

H de Ru, A historical perspective on the recognition of same-sex unions in South Africa, 19 FUNDAMINA 242 2013.

Universal Declaration of Human Rights.

International Covenant on Civil and Political Rights.

Henriet de Ru, The recognition of same-sex unions in South Africa, 2009.

Pride and Prejudice: Same-Sex Marriage Legalization Announcements and Hate Crimes.

Team Camp, Same-Sex Marriage and Family Law: Current Challenges and Solutions, 23 May 2025.

Burnett Attorneys, Same-Sex Marriages In South Africa, 10 January 2024.

Thomas Same-Sex Marriage and the Threat to Religious Liberty 2008.

Legislation

Immorality Amendment Act 57 of 1969.

Civil Union Act 17 of 2006.

 Medical Scheme Act 131 of 1998.

Basic Conditions of Employment Act 75 of 1997.