South Africa is changing its marriage laws from next year

The Department of Home Affairs plans to draft and submit new marriage laws to cabinet for approval by 31 March 2023.

In its 2021/2022 annual performance plan, the department noted that the current legislation that regulates marriages in South Africa has been developed ‘without an overarching policy that is based on constitutional values’ and the ‘understanding of modern societal dynamics’.

“Instead of creating a harmonised system of marriage in South Africa, the state has sought to give recognition to different marriage rituals through passing a range of different marriage laws,” it said,

The department added that marriages and civil union in the country are currently regulated through three different pieces of legislation, including:

• The Marriage Act – which provides for monogamous marriage for opposite-sex couples;
• The Recognition of Customary Marriages  – which provides for polygamous marriages for opposite-sex couples;
• The Civil Union Act – which provides for monogamous partnerships for both same and opposite-sex couples.

The department said the planned laws will effectively bring these different pieces of legislation under a single new Act, while also addressing gaps that remain in the current regulations.

“The new Marriage Act will enable South Africans of different sexual orientation, 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 of the Republic of South Africa.”

Planned changes

The department previously gazetted a green paper for public comment on its proposed changes in May 2021.

While this is not the official policy position of the government, it does articulate possible policy options or proposals that are based on inputs received from stakeholders during ministerial dialogues, it said.

“The white paper, articulating clear policy proposals, will be submitted to cabinet for approval by 31 March 2022 to enable the drafting and submission of new marriage legislation to cabinet for approval by 31 March 2023,” it said.

Some of the key changes that have been mooted in 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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