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Drafted by: Nazli

Child Marriages in South Africa – Is it legal?
Posted on: 23 Feb, 2017

According to the research of scientist Tom Griffiths and journalist Brian Christian, co-authors of Algorithms to Live by: The Computer Science of Human Decisions, 26 is the perfect age to get married. On the opposite side of this so-called perfection, we find child marriages.

What does the South African Law say about Child Marriages?

A minor child (younger than 18) can get married in South Africa, but certain restrictions/limitations apply.

The Age of Puberty

Boys under the age of 14 and girls under the age of 12 may under no circumstances get married. (This rule originates from the Roman Dutch Law, the foundation on which the South African Family Law is built.)

Child Marriages: The Legal Minimum Age

The legal minimum age for marriage is 18 years for boys and 15 years for girls. Exceptions to this can be granted with the written permission of the Minister of Home Affairs. The Minister may authorise any officer in the public service to give written permission on his behalf.

Child Marriages: Written Consent Required

The written consent of both parents, legal guardian(s), the Commissioner of Child Welfare or a High Court Judge is required before a minor child may get married. All the other legal requirements for a valid marriage still applies.

Read Sections 24 to 26 of the Marriage Act for more details.

What about FORCED Child Marriages?

Ukuthwala, a custom practiced by the Nguni groups of South Africa, seems to have created some uncertainty about the legal position in respect of forced child marriages in South Africa.

What is Ukuthwala?

Ukuthwala is a mock abduction that involves “kidnapping” of a girl or young woman by a man and his friends with the intention of forcing her family to agree to marriage. According to the South African government’s website, however, it has now been marked as rape or violence.

Forced Child Marriages – Against the Law

Marriage is a contract and consent a requirement. The Constitution and South African legislation prohibit marriage without consent:

  • Subsection 12(1) of the Children’s Act states that “every child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being.”
  • Subsection 12(2) of the Children’s Act protect the minor child from being forced into marriage by stating:  : “A child …. may not be given out in marriage or engagement without his or her consent.”
  • Section 141 of the Children’s Act protects the minor children from being exploited. The definition of “exploitation” includes forced marriages.

In summary

Child marriages where the necessary consent (and permission from the Minister of Home Affairs) has been obtained, are legal.

Forced Child Marriages, on the other hand, are unconstitutional and against the Children’s Act and must be reported.

Divorce Attorney Cape Town, Nazli WilliamsNazli Williams (BCom LLB), the director of Patton Williams Attorneys, is an admitted attorney of the High Court of South Africa, specializing in Divorce and Family Law matters. Her fields of expertise and interest include Divorce Law, Family Law, Domestic Violence Law and International Divorce Law. Her vision is to demystify Family Law processes, helping good people in plain language and with great technology, to achieve remarkable results.

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