The Marriage Bill, which is currently awaiting approval by the National Assembly, seeks to introduce a number of changes to the way marriages are regulated in South Africa.
Previously, Minister in the Presidency Khumbudzo Ntshavheni, commented that the Bill empowers the Department of Home Affairs to develop a single Marriage Act for the country.
BusinessTech spoke to Annelize Nagtegaal, a lecturer in the Department of Private Law at the University of Pretoria, with experience teaching Family Law and Divorce Law, who explained what this new law means for South Africa.
She said that over the last 25 years, South African matrimonial law has become a lot more broad than it once was.
“Initially our law only recognised and protected heterosexual civil marriages. After the enactment of the Constitution, the state could, however, no longer justify a matrimonial regime that recognised and catered for only one type of marriage.”
Section 9(3) of the Constitution prohibits unfair discrimination based on factors such as sex, sexual orientation, race, culture, and religion.
This led to the inclusion of civil unions, customary marriages, and Muslim marriages under legal protection.
“Each marriage is regulated and protected by a separate statute and the requirements for conclusion and regulation of the property regimes and dissolution all vary.”
Currently, marriages in South Africa are regulated through three different laws:
- The Marriage Act: for the monogamous marriage of opposite-sex couples.
- The Recognition of Customary Marriages Act: for marriages performed under African customary law, including polygynous marriages, of opposite-sex couples.
- The Civil Union Act: for monogamous partnerships for same-sex and opposite-sex couples.
https://businesstech.co.za/news/wp-content/uploads/2023/09/South-Africa-High-Court-300x200.jpg 300w, https://businesstech.co.za/news/wp-content/uploads/2023/09/South-Africa-High-Court-768x512.jpg 768w, https://businesstech.co.za/news/wp-content/uploads/2023/09/South-Africa-High-Court.jpg 1200w" alt="" width="1024" height="683" class="wp-image-719062" style="box-sizing: border-box; height: auto; max-width: 100%; vertical-align: bottom; background-color: rgb(248, 249, 250);" decoding="async" />In 2021, the Department of Home Affairs embarked on a process to create an “umbrella” marriage policy, presenting the country with a single legislation to replace these three Acts.
Following a White Paper and the Draft Marriage Bill of 2022, the Department tabled the Marriage Bill 2023 in parliament in December 2023.
The Bill lapsed in May 2024 with the government and National Assembly being dissolved after the national election but has since been revived by the newly constituted National Assembly on 25 July 2024, Nagtegaal said.
The Bill seeks to simplify and harmonise these rules by creating a unified system of marriage law in South Africa.
“Given our diversity, it is virtually impossible to pass legislation to govern every single religious and/or cultural practice.”
“The main aim of the Marriage Bill of 2023 is rather to create one harmonised system of marriage in South Africa with a minimum set of requirements that all marriages must comply with to be recognised.”
“It thus, effectively, seeks to eradicate the distinction between the different types of marriages to ensure the fair and equal treatment of all spouses.”
She said the hope is that it will lead to equal treatment of all marriages since many people still see civil marriages as “superior.
Nagtegaal explained that another key change proposed by the Bill is raising the minimum legal marriage age to 18, aligning with international standards.
Currently, children above the age of puberty (12 for girls and 14 for boys) can marry with the appropriate consent from parents, legal guardians, or certain court officials.
This Bill makes it a criminal offence to marry a child and introduces sanctions for contravention.
“The raising of the minimum marriageable age is certainly a step in the right direction.”
https://businesstech.co.za/news/wp-content/uploads/2024/02/Constitutional-Court-ConCourt-300x200.jpg 300w, https://businesstech.co.za/news/wp-content/uploads/2024/02/Constitutional-Court-ConCourt-768x512.jpg 768w" alt="" width="1000" height="667" class="wp-image-750336" style="box-sizing: border-box; height: auto; max-width: 100%; vertical-align: bottom; background-color: rgb(248, 249, 250);" decoding="async" />“Another benefit of this umbrella policy is certainly that there is an opportunity to update old marriage laws which no longer have a place in society and also to incorporate newer judgments,” Nagtegaal continued.
“The Marriage Act, for instance, contains a number of archaic provisions pertaining to the days, times and venues in which a marriage should be concluded.”
By consolidating and updating these laws, the new policy would make marriage more accessible and in line with contemporary social norms.
However, while this Bill may be making progress in this way, it also has several drawbacks, particularly where customary marriages are concerned.
“By eradicating the distinction between the different types of marriages, we risk losing the rich diversity of cultures and religions we have,” Nagtegaal said.
“Legislation and courts are increasingly ‘westernising’ the principles that govern customary and religious marriages.”
“It creates tension because, on ground level, we see that cultural and religious communities simply ignore the official laws and continue with their cultural and religious practices.”
Courts have made substantial progress in interpreting current marriage statutes and addressing issues, but the Marriage Bill does not resolve many of them.
For example, individuals who enter into customary or religious marriages will still need to meet additional, unspecified cultural or religious requirements, which may require reliance on prior court judgments for guidance.
“Polygyny, which is not traditionally recognised in respect of civil marriages, now seems possible, provided the requirements of section 6(2) of the Bill are met. Whether this is a positive or negative change remains to be seen,” she added.
Some have also criticised the bill for not “going far enough” in protecting domestic partnerships (those in permanent relationships who are not married).
However, Nagtegaal explained that regulating these relationships would be too difficult.
While there are vulnerable people in these relationships, for example, financially dependent individuals who may not have the choice of marrying formally, others specifically do not want the formal regulation and legal protection that comes with marriage.
https://businesstech.co.za/news/wp-content/uploads/2024/10/Shutterstock_1390023080-300x169.jpg 300w, https://businesstech.co.za/news/wp-content/uploads/2024/10/Shutterstock_1390023080-768x432.jpg 768w, https://businesstech.co.za/news/wp-content/uploads/2024/10/Shutterstock_1390023080.jpg 1200w" alt="" width="1024" height="576" class="wp-image-795137" style="box-sizing: border-box; height: auto; max-width: 100%; vertical-align: bottom; background-color: rgb(248, 249, 250);" decoding="async" />This Bill faces several challenges due to the clashing human rights issues.
“Parliament has a very difficult task with the process of public engagement and participation coming up. They will be required to engage in difficult conversations,” Nagtegaal said.
“Cultural and religious communities are very protective of their practices and rituals.”
Many of these traditions are seen as patriarchal and oppressive toward women, so creating safe spaces for women to provide input during this process will be crucial, she added.
“The question remains how to strike a balance between preserving these cultural and religious practices, promoting constitutional values, and recognising the evolving realities of current relationships.”
“The recognition of all forms of marriage is, of course, only the first step towards an entire overhaul of the matrimonial law in South Africa.”
On top of these changes, there is also a process in the works at the moment to revise the matrimonial property regimes.
“One must keep in mind that there is also a process underway to revise the matrimonial property regimes at present.”
“The default property regime is in community of property, and the question is whether a system of out of community of property with inclusion of the accrual would not be better.”
However, it seems as though this would be impractical, considering the compilations caused by polygamous and Muslim marriages, which are traditionally not in community of property.
“Then, there is also a process in terms of which the legislature has been ordered by the court in the Women’s Legal Centre Trust case to update divorce legislation to ensure that it also adequately makes provision for Muslim marriages.”
