All the updates to South Africa’s marriage laws

The coronavirus lockdown has impacted the Department of Home Affairs’ plans to introduce new policy changes, including a draft law to update South Africa’s marriage laws.

The department said in a presentation to parliament last week, that it now plans to gazette the policy for public comment before the end of the 2020/2021 financial year (31 March 2021).

In a May presentation, the department said that the legislation which currently regulates marriages in South Africa has been developed without an overarching policy that is based on constitutional values and an understanding of modern social dynamics.

This has led to the recognition of different marriage rituals without any harmonisation, it said.

“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 changes that will be introduced in the new policy include:

  • The new Marriage Act will enable South Africans of different sexual orientation, religious and cultural persuasions to conclude legal marriages;
  • The introduction of strict rules around the age of marriage (including the alignment of age of majority in the marriage legislation to the Children’s Act);
  • It will align the marriage, matrimonial property and divorce legislation to address matrimonial 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.

Civil unions

The delay comes after President Cyril Ramaphosa assented to two new pieces of legislation last week, which bring changes to some South African marriages and civil unions.

The 2020 Civil Union Amendment Act, which was gazetted on Thursday (22 October) and comes into immediate effect.

Under the new laws, marriage officers may no longer object to solemnising a civil union between persons of the same sex.

The Act also requires the minister of Home Affairs to ensure that there is a marriage officer available to solemnise a civil union at every Department of Home Affairs office.

The laws follow a number of high-profile cases where a marriage officer refused to solemnise a same-sex couple as it was ‘contrary to their beliefs’.

The Judicial Matters Amendment Act, which was also gazetted on Thursday, will provide additional protections to South Africans who married out of community of property in the country’s former homelands.

The Act provides for the just and equitable redistribution of property on divorce in respect of anyone married out of community of property.

This follows a 2018 Constitutional Court judgement which dealt with a  couple who were married under the Transkei Marriage Act.

Read: Ramaphosa signs new marriage and civil union laws for South Africa

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All the updates to South Africa’s marriage laws