The legal landscape of matrimonial property law in South Africa has been the subject of continuing constitutional scrutiny. The constitutionally protected rights of equality and freedom of religion, amongst others, have demanded reform to ensure inclusivity of beliefs and customs previously unrecognised. It therefore comes as no surprise that our Legislature has elected to introduce a new Marriage Bill to effect constructive reform, rather than the piecemeal amendments to existing legislation that have been the trend.
The Bill is currently being considered in the National Assembly after its introduction on 13 December 2023. The Bill introduces several key changes, including the rationalisation of marriage laws pertaining to various types of marriages, establishing explicit regulation of polygamous and monogamous marriages, clarifying registration requirements for all types of marriage, and broadening the designation of marriage officers.
The significant feature of the Marriage Bill is its intention to unify matrimonial law in South Africa. It recognises that different pieces of legislation applicable to various customs and religions undermine equality before the law. It therefore aims to consolidate the Recognition of Customary Marriages Act 120 of 1998, the Civil Union Act 17 of 2006 and the Marriage Act 25 of 1961 into a single piece of law and so eradicate inconsistencies present in current legislation. Accordingly, the Bill seeks to harmonise the regulation of marriage within a single legislative instrument.
The implication of the aforementioned is that all marriages, regardless of religious practice, custom or civil status, will be recognised and awarded equal protection.
Polygamous and monogamous marriages are acknowledged in the Draft Bill, with clearly defined requirements for their validity.
The Marriage Bill also introduces several registration requirements aimed at ensuring the validity of marriages. For marriages concluded before the enactment of the Bill and not yet registered, couples will have a transitional period of twelve months from the commencement of the Act, or a longer period as determined by the Minister, to register the marriage.
Chapter 4 of the Marriage Bill further expands the scope of who may be designated as a marriage officer. This increases accessibility to marriage officers within religious and cultural practices by providing that any qualifying individual holding a responsible position within a religious institution, secular organisation, traditional council or Khoi-San council, as defined, may, in the prescribed manner, apply to the Director-General to be designated as a marriage officer.
A further significant amendment proposed is to increase the minimum age of marriage to 18 years for both prospective spouses in monogamous and polygamous marriages. The Bill also provides that any person who enters into a marriage with a person who is not at least 18 years of age, or any person, other than a child, who participates knowingly in such a marriage, shall be guilty of an offence and liable on conviction to a fine or in default of payment, to imprisonment for a period not exceeding 5 years or to both such fine and such imprisonment. This is opposed to the current legal position that minors can enter a marriage with the consent of a parent or guardian, and in certain instances, the additional consent of the Minister is required.
Notwithstanding the noble intentions behind the Marriage Bill, its subject matter of necessity involves intense public scrutiny, and not all are happy with its scope and proposals. Criticism has also levelled at the silence of the Bill on prominent issues, such as the fact that the Bill does not address or regulate domestic partnerships. The Bill also does not clarify how to manage conflicts stemming from overlapping civil, customary, and religious marriages. Critics argue that this is problematic, as the current law treats such overlapping unions differently, particularly in matters of divorce, inheritance and succession. For now, it is still a waiting game to see what the impact of public and stakeholder commentary will be on the Bill as the Bill is under consideration by the National Assembly, and public hearings are being held.
As South Africa rethinks what marriage means in law and in life, the new Bill truly is about redefining ‘I Do’.
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