The South African Law Reform Commission (SALRC) has called for comments on its discussion paper focusing on a single marriage statute for South Africa.
Currently, the country’s laws are somewhat fragmented because of the different religious and cultural marriages which are recognised under the Constitution.
There are also separate pieces of legislation in place for specific relationships – including same-sex civil unions and opposite-sex marriages.
A singular marriage statute would reconcile these differing and diverse relationships into a single piece of legislation based directly on the constitutional values of the country.
The SALRC has effectively proposed two options for this new statute – the ‘Protected Relationships Bill’ and the ‘Recognition and Registration of Marriages and Life Partnerships Bill’.
The bills seek to provide for the recognition, in terms of option one, of protected relationships or, in terms of option two, of marriages and life partnerships, entered into by parties regardless of the religious, cultural or any other beliefs of the parties, or the manner in which the relationship was entered into.
Options and alternatives
The 300-page discussion paper tackles the diverse nature of relationships in South Africa in an in-depth way, and offers a number of proposals and alternatives.
As an example, it proposes that under the Protection Relationships Bill, the definition for a monogamous protected relationship should be that a ‘monogamous protected relationship’ means the relationship of two people regardless of their sex, sexual orientation, or gender identity, to the exclusion of all others, unless dissolved by divorce or death of one or both parties.
Alternatively, in the Recognition and Registration of Marriages and Life Partnerships Bill a ‘monogamous marriage or life partnership’ means the relationship of two people regardless of their sex, sexual orientation, or gender identity, to the exclusion of all others, unless dissolved by divorce or death of one or both parties.
The proposed bills also provide option and alternatives on the requirements for:
- Entering into a protected relationship or a marriage or a life partnership;
- To provide for registration of protected relationships or marriages and life partnerships;
- To provide for the legal consequences of entering into protected relationships or marriages and life partnerships.
In October 2020, the Department of Home Affairs confirmed that its plans to introduce a new draft marriage policy in South Africa, but has indicated that the process was delayed due to the coronavirus pandemic.
The department said that the policy was originally set to be gazetted for public consultation during the 2020/21 financial year, after which it will be submitted to cabinet for approval by 31 March 2021.
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.