Updated marriage system planned for South Africa – how it would work
The Department of Home Affairs (DHA) is working on changes to South Africa’s marriage and civil union systems to better reflect the diversity of the country’s relationships and remove any instances of discrimination.
In a presentation on Thursday (4 November), the department’s chief information officer, Sihle Mthiyane, said that this would include a general harmonisation of the system, which is fragmented across several pieces of legislation, including the Marriage Act and the Civil Unions Act.
Under South Africa’s current legal system, a civil marriage is a marriage that can only be entered into between a man and a woman. By comparison, a civil union is entered into between two persons and include persons of the same sex.
Based on this, the department is leaning towards the introduction of an omnibus marriage legislation, he said.
“With the marriage regime, we are also trying to move towards a gender-neutral marriage regime,” Mthiyane said. “An omnibus marriage legislation is what we are moving towards, which will cover all forms of marriage.”
This aligns with proposals put forward by the department in its Green Paper on Marriages in South Africa, which began public consultations in October.
The Green Paper effectively puts forward three marriage regimes which the country could follow in the future, including:
- Omnibus or Umbrella Marriage Act – The omnibus legislation is a single act that will contain different chapters for a diverse set of legal requirements of civil marriages, civil unions, customary marriages, and other marriages that are not regulated by the current legislation.
- Single Marriage Act – A single Marriage Act has a unified set of requirements and consequences applying to all marriages. The department said that this option may not suit the country’s mixed legal system and might not pass the Constitutional muster.
- Parallel Marriages Acts – The retention of the status quo is also an option that requires consideration, the department said. This option will require more marriage legislation that must cater to the marriages that are excluded by the current marriage legislation.
Other changes
The department’s green paper also proposes changes for customary marriages and more general changes around unions, age, and consent.
“Despite all the changes that have been made in the marriage legislation post-1994, there are still serious gaps in the current legislation. For instance, the current legislation does not regulate some religious marriages such as the Hindu, Muslim and other customary marriages that are practised in some African or royal families.
“Given the diversity of the South Africa population, it is virtually impossible to pass legislation governing every single religious or cultural marriage practice. It is against this background that the DHA is embarking in the process of developing a marriage policy that will lay a policy foundation for drafting a new single or omnibus legislation.”
Some of the key proposals include:
- The new Marriage Act will enable South Africans of different sexual orientations, religious and cultural persuasions to conclude legal marriages;
- The introduction of strict rules around the age of marriage – including the alignment of the age of majority in the marriage legislation to the Children’s Act;
- It will align the marriage, marital property and divorce legislation to address marital property and intestate succession matters in the event of the marriage dissolution;
- It will allow for equitable treatment and respect for religious and customary beliefs in line with Section 15 of the Constitution.
- It will deal with the solemnisation and registration of marriages that involve foreign nationals;
- It will deal with the solemnisation and registration of customary marriages that involve non-citizens, especially cross-border communities or citizens of our neighbouring countries.
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