How the government wants to change South Africa’s marriage laws

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The South African Law Reform Commission (SALRC) called for comment on its discussion paper focused on a single marriage status for South Africa.

Currently, the country’s laws are somewhat fragmented due to the different religious and cultural marriages recognized by the Constitution.

Separate laws are also in place for specific relationships – including same-sex civil unions and heterosexual marriages.

A single marriage law would reconcile these different and diverse relationships into a single piece of legislation based directly on the country’s constitutional values.

The SALRC has effectively proposed two options for this new status – the “Protected Relationships Bill” and the “Marriage and Life Partnerships Recognition and Registration Bill”.

The bills seek to provide for the recognition, in terms of option 1, of protected relationships or, in terms of option 2, of marriages and life partnerships, entered into by the parties regardless of religious, cultural or other parties, or how the relationship was entered into.

Options and alternatives

The 300 page working document discusses the diversity of relations in South Africa in depth and offers a number of proposals and alternatives.

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As an example, he proposed that under the Protective Relationships Bill, the definition of a monogamous protected relationship is 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 Marriage and Life Partnerships Recognition and Registration Bill, a “ monogamous marriage or life partnership ” refers to the relationship of two people regardless of their gender, sexual orientation or their gender identity, to the exclusion of all others, unless it is dissolved by divorce. or the death of one or both parties.

The bills also provide options and alternatives on the requirements for:

  • Entering into a protected relationship or marriage or life partnership;
  • Provide for the registration of protected relationships or marriages and life partnerships;
  • Anticipate the legal consequences of entering into safe relationships or marriages and life partnerships.

Departmental push

In October 2020, the Home Office confirmed plans to introduce a new draft marriage policy in South Africa, but said the process had been delayed due to the coronavirus pandemic.

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The ministry said the policy was initially scheduled to be published in the Official Gazette for public comment in fiscal year 2020/21, after which it will be submitted to cabinet for approval by March 31, 2021.

The legislation that currently regulates marriage in South Africa was developed without a comprehensive policy based on constitutional values ​​and an understanding of modern social dynamics.

This has led to the recognition of different wedding rituals without any harmonization, he said.

“Despite all the changes that were made to marriage law after 1994, there are still serious gaps in the current law. For example, the current law does not regulate certain religious marriages such as Hindu, Muslim and other customary marriages which are performed in some African or royal families.

“Given the diversity of South Africa’s population, it is virtually impossible to pass legislation governing every religious or cultural practice of marriage. It is in this context that the DHA is embarking on the process of developing a marriage policy which will lay a political basis for the drafting of a new single or omnibus legislation.

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Some of the key changes that will be introduced in the new policy include:

  • The new marriage law will allow South Africans of different sexual orientations, religious and cultural beliefs to enter into legal marriages;
  • The introduction of strict rules regarding the age of marriage (including the alignment of the age of majority in marriage legislation with the Children’s Act);
  • It will align marriage, matrimonial property and divorce law to address issues of matrimonial property and intestate succession in the event of marriage dissolution;
  • It will allow for fair treatment and respect for religious and customary beliefs in accordance with article 15 of the Constitution.
  • It will deal with the celebration and registration of marriages involving foreign nationals;
  • It will deal with the celebration and registration of customary marriages involving non-nationals, in particular cross-border communities or citizens of our neighboring countries.

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