Can A Person Under 18 Years Marry and Enter Into An Antenuptial Agreement?

A person under 18 cannot marry in South Africa under current law. The minimum legal age for marriage — both civil and customary — is 18 for every person, with no exception for parental consent, ministerial consent, or pregnancy. This uniform age was set by amendments to the Marriage Act 25 of 1961, which runs alongside the Recognition of Customary Marriages Act 120 of 1998 (as amended), and aligns South African marriage law with the Constitution’s equality and children’s-rights provisions. A marriage solemnised in breach of this rule is void, and the parties officiating or facilitating it may face criminal liability under the Children’s Act 38 of 2005.

The Current Rule: Minimum Age of 18, No Exceptions

The current statutory rule is that no person under 18 may marry in South Africa. This rule applies equally to civil marriages under the Marriage Act 25 of 1961 and customary marriages under the Recognition of Customary Marriages Act 120 of 1998.

No exception exists for parental consent, ministerial consent, pregnancy, or any other factor. Every exception that previously allowed an underage marriage to proceed was removed by the Marriage Amendment Act of 2020. The rule applies regardless of the parties’ gender — the same 18-year floor governs boys and girls alike. It applies to South Africans and to anyone solemnising a marriage in South Africa regardless of nationality.

What the Law Used to Allow (For Context)

Before the 2020 amendments, South African marriage law permitted underage marriages in ways that are no longer lawful:

• Under the Marriage Act, a boy under 18 could marry with parental consent, since the principal Act fixed no minimum age for boys.
• A girl could marry from age 15 with parental consent.
• A separate customary-law regime permitted even younger customary marriages — the practical floor for girls under customary practice sat below 15 in some contexts.
• Pregnancies of teenage girls were a common pathway under which underage marriages were solemnised under the old dispensation.

The constitutional issues with the differential age between boys and girls, and the very-low customary floor, drove the litigation and lobbying that produced the 2020 reform.

Time period	Boys	Girls	Customary marriages	Parental consent
Before the 2020 amendments	Under-18 permitted with parental consent	From 15 with parental consent	Followed customary practice, often younger	Operated as a workaround to the minimum
After the 2020 amendments	18 minimum, no exception	18 minimum, no exception	18 minimum, no exception	No longer operates as a workaround — 18 stands regardless

The 2020 Reform: What Changed and Why

The Marriage Amendment Act of 2020 removed every under-18 exception from the Marriage Act 25 of 1961. Section 9 of the Constitution (the right to equality) and section 28 (the rights of children) provided the constitutional baseline for the reform.

International obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the African Charter on the Rights and Welfare of the Child were driving pressures behind the legislative change. South Africa’s reporting obligations under both instruments required uniform domestic treatment of the minimum age.

The 2020 amendment also amended the Recognition of Customary Marriages Act to apply the same 18-year minimum to customary marriages — a substantive change to customary-law marriage, not merely a procedural adjustment.

What Happens If a Marriage Is Performed Anyway

A marriage solemnised in breach of the 18-year rule is void ab initio — it has no legal effect from the moment it was attempted. The parties cannot derive marital property consequences, maintenance rights, or pension rights from it.

• Marriage officer: Acts in breach of statutory duty, faces disciplinary action under the Department of Home Affairs regulatory framework, and may face criminal exposure.
• Adult party or intermediary: Where the conduct crosses into facilitating child marriage — including the marrying adult, intermediaries, or family members arranging the marriage — criminal liability under sections of the Children’s Act 38 of 2005 (relating to the facilitation of underage marriage) may apply.
• Department of Home Affairs: Will not register an underage marriage. Parents and marriage officers alike are bound to refuse.

Customary Marriages: The Same-Age Rule Applies

Customary marriages are governed by the Recognition of Customary Marriages Act 120 of 1998, as amended, and the 18-year minimum now applies on the same footing as under the Marriage Act.

Negotiation of lobola or bridal wealth does not displace the minimum-age rule. The marriage cannot be registered with the Department of Home Affairs until both parties are 18. A customary marriage solemnised under customary law but unregistered does not acquire full legal recognition in South Africa — both the minimum-age rule and the registration requirement must be satisfied before the marriage has full legal effect.

Families accustomed to negotiating an underage customary marriage should be made aware that the rule applies before any solemnisation, not only at the registration step. The rule is engaged the moment a marriage is performed, not when it is recorded.

What a Person Can Do If an Underage Marriage Is Being Planned

Where there is concern that an underage marriage is being planned, several practical pathways exist to prevent the marriage from proceeding:

1. A child (any person under 18) may approach a designated social worker or the Department of Social Development for protection where parental conduct places the child at risk of an underage marriage.
2. A family member, school teacher, or social worker can approach the Department of Home Affairs to flag a planned underage marriage before solemnisation.
3. The South African Police Service can be approached where there is concern that an underage marriage is being coerced.
4. A child protection court under the Children’s Act can grant a protection order in appropriate cases.

The rule applies uniformly across all nine provinces — Gauteng, the Western Cape, KwaZulu-Natal, the Eastern Cape, the Free State, Limpopo, Mpumalanga, the Northern Cape, and the North West. There is no provincial or magisterial variation in the minimum age, and no venue-to-venue distinction. A customary marriage solemnised under customary practice — whether in a Limpopo kraal, a KwaZulu-Natal homestead, or a Gauteng township home — sits on the same legal footing, and the same 18-year rule applies. In Gauteng, the practical consequence is that no marriage officer in Johannesburg, Pretoria, or Centurion can validly solemnise the marriage even when approached with full parental cooperation.

Frequently Asked Questions

Can a 16-year-old marry in South Africa with parental consent?

No. Since the 2020 amendments, no person under 18 may marry in South Africa, regardless of parental consent. Any exception that previously allowed this has been removed from both the Marriage Act 25 of 1961 and the Recognition of Customary Marriages Act 120 of 1998.

Does customary law still allow child marriage in South Africa?

No. The 2020 amendments removed the under-18 provisions from customary marriage law as well. Both civil and customary marriages now share the same 18-year minimum, and lobola negotiations do not displace the rule.

What if a marriage officer refuses to solemnise the marriage?

The marriage officer is correct to refuse. Solemnising an underage marriage is unlawful under the Marriage Act. The Department of Home Affairs will not register an underage marriage, and the marriage officer may face disciplinary and criminal consequences for proceeding.

Can a marriage performed abroad involving a South African minor be recognised here?

Recognition of foreign marriages is governed by South African common law and statute. Where a marriage was validly performed abroad but involved a South African minor, recognition raises specific constitutional and statutory issues that turn on the individual circumstances. A qualified family law attorney should be consulted on the specific case.

Is pregnancy an exception to the minimum-age rule?

No. The 2020 amendments removed pregnancy as a basis for under-18 marriage, just as they removed parental consent and ministerial consent. A pregnant minor is a child under the Children’s Act and is entitled to the same child-protection safeguards as any other minor.

While this article is general legal information, families and professionals working with a child at risk of an underage marriage are best served by contacting a family law attorney before a solemnisation is attempted. Burger Huyser Attorneys’ Family Law team handles child-protection matters, including safeguarding interventions under the Children’s Act, and can be reached at the head office on 011 888 0246 (49 First Avenue, Linden, Randburg). The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and operates across its Gauteng branches, with Family Law supervision through Director Anna-Mi Nel.