Public consultations on proposed new marriage laws has kicked off in Gauteng; and its provisions and omissions has already sparked some fierce debate
In South Africa, marriages are currently governed by three separate laws, each addressing different types of unions:
- The Marriage Act: Covers monogamous marriages between opposite-sex couples.
- The Recognition of Customary Marriages Act: Applies to marriages conducted under African customary law, which can include polygynous marriages, and also only covers opposite-sex couples.
- The Civil Union Act: Allows for monogamous partnerships, including both same-sex and opposite-sex couples.
In 2021, the Department of Home Affairs began a process to unify these different laws into a single “umbrella” marriage policy.
The proposed Marriage Bill aims to create a unified, system for all marriages in South Africa.
Proponents say it addresses the inequalities of the current system, which treats different types of marriages (civil, customary, and Muslim) differently.
“The Marriage Bill seeks to harmonise all the different marriage laws into one, accommodating all cultures and religious beliefs,” said Parliament’s Portfolio Committee on Home Affairs in a recent statement.
This is argued to ensure Section 9(3) of the Constitution (which prohibits unfair discrimination based on factors such as sex, sexual orientation, race, culture, and religion) is fully realised.
The department has argued that the Bill also ‘modernises outdated laws’, simplifying the process and removing restrictions on marriage ceremonies, raising the minimum marriage age to 18, aligning with international standards, and protecting children’s rights by criminalising child marriage.
A more in-depth discussion of the provisions can be found below:
New marriage laws for South Africa coming
However, the bill has faced criticism for various reasons: with one side arguing that it is “too liberal” with its same-sex provisions, while others have expressed concerns exist about its potential to exclude certain groups.
These concerns include (but not limited to) the requirement for all marriages to be registered, which may be difficult for women in customary marriages, the lack of clear recognition for Muslim marriages, and the exclusion of domestic partnerships.
Public hearing backlash (and support)
The Parliamentary Committee said that at the meeting in Tshwane, several religious leaders, cultural activists, and general members of the public expressed reservations.
During the public hearings in Tshwane, “speakers held strong religious and cultural views and argued against some provisions in the bill such as same-sex marriage and polyandry,” said the committee.
Some argued that Bill in its current form would “undermine culture and tradition, which do not recognise the concept of polyandry and marriage between people of the same gender,”
There were also those who felt there was no need for a single legislation to govern all types of marriages, as this could undermine some cultural and religious right.
“The religious leaders felt very strongly about proposed plans in the Bill to prevent Department of Home Affairs’ officials from refusing to conduct marriages that go against their personal beliefs, this was seen as a violation of religious rights,” said the committee.
“A proposal was made for an exemption to ensure people are not penalised for their beliefs,” they added.
Some said that the Bill was “too liberal, and they proposed that a law must have limits, instead of allowing and legalising every societal trend.”
The Bill also faced criticism for not addressing ‘ukuthwala’, a traditional practice where women are abducted for forced marriages.
Critics called for its outlawing, especially as it often involves underaged girls marrying older men.
There were also calls for the Bill to include measures against fraudulent marriages, particularly those involving South African women and foreign men for citizenship purposes.
Additionally, some public submissions suggested raising the legal marriage age from 18 to 21 or 25, arguing that 18-year-olds are often still in school.
Looking at Ekurhuleni, several residents urged the Portfolio Committee to include protections for people cohabiting with their partners in the Marriage Bill, citing the risks faced by women and children when these relationships end.
They called for provisions to safeguard property and rights in such arrangements.
The Bill received mixed reactions in Ekurhuleni: supporters praised it for promoting equality and aligning marriage laws with constitutional rights, including the legal age of marriage at 18, in line with international standards.
However, they criticised the proposed penalties for child marriage as too lenient.
Opponents argued the Bill fails to fully address Muslim marriages, leaving legal uncertainty for Muslim women.
They called for clearer provisions on recognising various marriages and regulating polygamous marriage consent.
The committee will today conclude the Gauteng public hearings with two hearings in Mogale City and Midvaal Local Municipality.
The committee invites all interested individuals and organisations to come and share their views.
