Trouble for new marriage laws in South Africa
The new Marriage Bill is facing challenges from members of the public, with concerns over the proposed laws conflicting with religious beliefs, and not doing enough to protect children or prevent abuses of the system.
The Marriage Bill seeks to replace three existing and separate marriage laws with a single, inclusive marriage statute that recognises all forms of marriage.
This includes civil, customary and religious unions, regardless of sexual orientation, belief or cultural practice.
The law is currently in a public consultation phase, where South Africans can voice their opinions through public hearings. The first hearings were held in Knysna, Western Cape.
“Public hearings are not a tick-box exercise,” said Mr Mosa Chabane, the Chairperson of the Home Affairs committee.
“They are a vital platform to ensure the voices of ordinary South Africans are heard and reflected in the laws passed by Parliament.”
That said, members of the Muslim community of the Garden Route District Municipality expressed concerns over the laws.
Most pressingly, they said the Bill would have unintended consequences, like relegating Islamic marriages to human-made laws.
The participants claimed that Islamic law is ordained by God, and that “manufactured” laws such as the Marriage Bill would violate rights to religious freedom.
Participants also raised the alarm over other aspects of the law, such as the provision that, in polygamous marriages, the first wife must give written consent.
They argued that this would undermine subsequent marriages, especially because Islamic law gives equal status and validity to all individual marriages in a polygamous setting.
They also argued that women’s rights are protected by Islamic Law and that the Marriage Bill would undermine the protections offered under these laws.
There were also concerns that the Marriage Bill is sexist in its wording by only recognising polygamous marriages.
Meanwhile, there were concerns that the Marriage Bill is sexist in its wording by only recognising polygamous marriages and not recognising polyamorous marriages.
Participants argued that this is in direct contradiction to the Constitution and must be amended to ensure inclusivity and protect women’s rights.
Not tough enough
There were also strong views on the supposed leniency of the Bill, especially concerning marriage officers who solemnise a marriage involving a child.
This is based on the belief that forced marriages are illegal. There were calls for the Bill to be clear and categorical on the punishment of these marriage officers.
There were also concerns about marriages to foreign nationals and the lived experiences of South Africans who entered these marriages.
The committee was urged to ensure that stronger regulations are in place to prevent abuse of marriages for selfish reasons, such as to regularise residence in South Africa.
Another strong view was that the Bill must be amended to recognise cohabitation, as it is a largely accepted norm in South Africa.
Participants argued that the amendment is necessary to protect the property rights of partners and children in a cohabitation arrangement.
Moreover, there was consensus that to reduce the current divorce rate, the Bill must regulate the age of consent to enter into a marriage.
Participants said that 18 years is too young for anyone to enter into a marriage, as they are still too immature for the challenges of marriage.
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