Can Home Affairs refuse an application for a same-sex marriage?

The long answer

Thank you for your email asking whether Home Affairs can refuse an application for a same sex marriage.

No, Home Affairs may not refuse an application for a marriage certificate for a same sex marriage. Heterosexual couples can be married under the Marriages Act of 1961, while both heterosexual and same sex partners can be married under the Civil Union Act of 2006. There is no difference in status between them.

There are reports of some Home Affairs officials continuing to block and obstruct the marriages of same sex couples, but this behaviour is against the law, specifically the Bill of Rights in the Constitution, which guarantees equal rights to everyone irrespective of sexual orientation.

To begin the process of getting married, you must register your intention to marry with Home Affairs and apply for a marriage certificate at least three months before you intend to get married. Home Affairs marriage forms are available on request and must be submitted with the following documents:

• ID’s for both partners

• Both passports if one partner is not South African

• A completed B1-31 form which declares that there is no legal impediment to your marriage. (This form is also available from Home Affairs offices.)

• Official divorce decree, stamped by the court, if one partner has previously been married

• A death certificate, if one partner has been widowed.

421 out of a total of 1,130 Home Affairs marriage officers have been exempted from having to perform same sex marriages under Section 6 of the Civil Union Act, but this will come to an end in 24 months time.

This is because a Private Member’s Bill by Deidre Carter of the Congress of the People (COPE) was passed in December 2018 to repeal Section 6, on the grounds that it is illegal for employees of the state to refuse to serve the people. Though the Bill was passed, the Home Affairs Portfolio Committee inserted a clause saying the existing exemptions for performing same sex marriages would continue for 24 months to allow Home Affairs to conduct “sensitivity training” among its officials.

On the day you get married, Home Affairs says that prospective civil union partners must sign their willingness to enter into a civil union in the presence of the marriage officer and two witnesses. This data is registered on the central data system and the details entered in the population register.

The marriage officer officiating at a civil union must ask the parties whether they wish their union to be known as a marriage or a civil partnership. He/she must ask each of the parties to confirm that there is no legal impediment to their marriage, and that they call on the parties present to witness that they take the other as their lawful spouse/ civil partner. Then the parties take each other by the right hand and the marriage officer declares that they have been lawfully joined in a marriage / civil union.

You will be given a handwritten abridged certificate of marriage (B1-27) by the marriage officer free of charge. If you want to apply for an unabridged certificate which has more detailed information, you need to fill in a B1-130 form and pay a fee of R75.00. It takes about 6 – 8 weeks to get the unabridged certificate. You can call the Home Affairs toll-free hotline 0800 601 190 to follow up on the progress of your application for an unabridged marriage certificate.

If Home Affairs continues to refuse your application for a marriage certificate, you could contact Lawyers for Human Rights or the Legal Resources Centre for assistance.

Lawyers for Human Rights: http://www.lhr.org.za/  (011) 339 1960

Legal Resources Centre: http://lrc.org.za/ (011) 836 9831