Big change to legal age of marriage on the cards for South Africa
South Africa is on the brink of significant changes to its marriage laws, with public consultations on the proposed Marriage Bill kicking off in Gauteng.
The process has already ignited spirited debate, particularly around the legal age for marriage and how best to address the inequalities in the current system.
The headline proposal here is to set the legal age of marriage at 18 years without exception – with some even wanting this to be pushed as high as 21 or even 25.
This would be a significant move away from the current conditional allowance of marriage under the age of 18 for children as young as 12 for girls and 14 for boys.
At present, marriages in South Africa are regulated by three distinct laws, each tailored to different types of unions.
The Marriage Act governs monogamous marriages between opposite-sex couples, while the Recognition of Customary Marriages Act applies to African customary marriages, including polygynous unions, but excludes same-sex couples.
The Civil Union Act accommodates monogamous partnerships for both same-sex and opposite-sex couples.
This fragmented approach has long been criticised for its failure to provide a unified legal framework, leading to inequality and confusion.
In 2021, the Department of Home Affairs initiated efforts to harmonise these laws under a single, comprehensive policy.
The proposed Marriage Bill aims to unify all marriage legislation, creating a system that accommodates South Africa’s diverse cultural, religious, and social practices.
Parliament’s Portfolio Committee on Home Affairs argue that this effort reflects the spirit of the Constitution, particularly Section 9(3), which prohibits unfair discrimination based on factors such as sex, race, culture, and religion.
The committee added that the Bill seeks to modernise outdated laws while ensuring inclusivity for all types of unions.
One of the most contentious provisions in the draft legislation concerns the legal age of marriage.
Under current laws, South Africa allows minors under the age of 18 to get married under certain conditions.
The minimum age at which a minor may enter into marriage under both civil and customary law is 12 to 17 for girls and 14 to 17 for boys.
Section 5(1) of the Bill proposes that South Africa set the age of marriage at 18 for both sexes without exceptions.
However, many stakeholders believe this threshold is still too low.
They have called for the minimum age to be raised to 21 or even 25, citing concerns that 18-year-olds are often still in school and lack the maturity and economic stability needed to sustain a marriage.
Proponents of this change argue that raising the age limit would better protect young individuals from premature unions and align marriage laws with broader social and developmental goals.
While there is widespread agreement on the need to protect children from early marriages, opinions diverge on how to enforce these protections.
The Bill’s proposed penalties for child marriages, outlined in Section 17, have been criticised as too lenient.
Under the draft law, perpetrators may face fines, but stakeholders argue that this could undermine the provision, particularly for wealthier offenders who can easily afford to pay.
Many have urged the committee to impose stricter penalties, such as mandatory imprisonment, to ensure stronger deterrence and justice for victims.
As consultations continue, the proposed Marriage Bill represents a pivotal moment for South Africa.
It seeks not only to unify disparate marriage laws but also to address deep-seated social issues, from gender inequality to the protection of minors.
The debates surrounding the Bill underscore the complexities of balancing tradition, modernity, and constitutional rights in a country as diverse as South Africa.
Whether through raising the marriage age or introducing tougher penalties for child marriage, the outcome of these consultations will shape the nation’s legal and cultural landscape for generations to come.
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