Changes to marriage laws in South Africa – what to expect this year

The Department of Home Affairs (DHA) says it will submit the updated Marriage Bill to Cabinet this year, with the goal of obtaining approval to table the proposed laws in Parliament in 2024.

The DHA has presented its latest annual performance plan for 2023/24, which outlines the department’s plans for the year.

Over the next 12 months, the draft laws are expected to be approved for submission to the minister by the end of June, with various clusters and committees giving recommendations by the end of the year. By March 2024 the department hopes to have the necessary cabinet approval to table the draft bill to Parliament.

The draft laws are seeking to resolve a major problem with South Africa’s current marriage laws.

The department said that despite all the changes that have been made to marriage legislation in South Africa post-1994, there are still serious gaps that need to be addressed.

For example, the current legislation does not regulate some religious marriages, such as the Hindu, Muslim and other customary marriages practised in some African or royal families.

To address this, the DHA embarked on a process in 2021 to develop an “umbrella” marriage policy, which will present the country with a new single legislation.

Currently, marriages in the country are regulated through the following:

• The Marriage Act – for the monogamous marriage of opposite-sex couples.

• The Recognition of Customary Marriages – for polygamous marriages of opposite-sex couples.

• The Civil Union Act – for monogamous partnerships for same-sex and opposite-sex couples.

The DHA said: “The new Marriage Act will enable South Africans of different sexual orientations, religious and cultural persuasions to conclude legal marriages that will accord with the doctrine of equality, non-discrimination and human dignity as encapsulated in the Constitution.”

Essentially, the new bill will bring all the previous pieces of legislation under one umbrella and address gaps that may remain in the current legislation.

Regarding the process of this bill actually coming to fruition, the DHA said that the development of relevant policy would inform the legislative and parliamentary processes to be implemented over the medium term.

Come the financial year 2024/25, the DHA plans to have the Marriage Bill tabled in Parliament, where it will undergo scrutinisation by both the National Assembly and the National Council of Provinces.

Talk of the new bill dates back years to when the DHA began public consultations on its Green Paper on Marriages in South Africa.

Some of the most notable changes that were mooted under the green paper 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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