The Marriages Act v The Civil Unions Act

Heterosexual couples intending to get married in South Africa today can choose to marry either in terms of the Marriages Act or the Civil Unions Act. This begs the question: why do we have two pieces of legislation to regulate a single act of union and what are the implications of choosing one over the other?

Historically, the Marriage Act 25 of 1961, codified the common law definition of a marriage as the legally recognised voluntary union of one man and one woman to the exclusion of others while it lasts. This legislation was challenged by Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005) on the grounds that the common law and section 30(1) of the Marriage Act denied same-sex couples equal protection and benefit of the law in contravention of section 9(1) of the Constitution. In addition, these provisions resulted in same-sex couples being subjected to unfair discrimination by the state in conflict with section 9(3) of the Constitution. In a constitutional democracy this position needed to be remedied.

The Constitutional Court acknowledged that the common law definition of marriage was inconsistent...