INTRODUCTION

South Africa is a young constitutional democracy and developing country. Its main national laws protecting children, namely, the supreme Constitution 1996 and the comprehensive Children's Act 2005 based on its provisions, are internationally acclaimed for their progressive nature. South Africa is also a state party to the main international and regional human rights instruments protecting women and children, namely, the UN Women's Convention, the CEDAW 1979; the UN Children's Convention, the CRC 1989; and the African Children's Charter, the ACRWC 1990. It has ratified these instruments without any reservations and therefore has a legal obligation to apply their provisions to its national laws. However, although there is a commitment in the Constitution to do so, the rights contained in its Bill of Rights may also be subject to limitation.

All the above main laws and instruments define a child as a person under the age of 18. In South Africa the term ‘minor’ is used generally to refer to persons in this age range and the term ‘major’ (adult) is used to refer to persons aged 18 and older. Although minors have limited legal capacity to act independently without the assistance of an adult (major), there are several legal ‘concessions ’, like emancipation, which allow minority to be suspended, rather than terminated, for certain purposes. However, there are also two ways of becoming a major. While the usual way is for a person to acquire such status on their 18th birthday, a second (unusual) way is for a minor to attain majority prematurely, by way of exception, through concluding a valid civil or customary marriage before the age of 18. This exception can therefore be construed as encouraging child marriage.

With a focus on the default civil marriage regulated by the Marriage Act 1961, this chapter will argue that the exception of marital majority results in some conflict in South African law about the decisions children are able to make and at what age they can do so. This chapter will investigate what attaining majority through early marriage implies, and whether being treated as a (marital) major is the same as being treated as having attained the age of 18.