Issued by the FW de Klerk Foundation on 31/08/2023

Today, the FW de Klerk Foundation made a submission to Parliament on the Draft Marriage Bill 2022.

South Africa is characterised by the coexistence of various marriage laws, including the Marriage Act 25 of 1961 (the ‘Marriage Act’), the Recognition of Customary Marriages Act 120 of 1998 (the ‘ROCMA’), and the Civil Union Act 17 of 2006 (the ‘Civil Union Act’). This fragmented legal framework has led to inconsistencies in the treatment of different marriage types, resulting in disparities in property rights, inheritance, and marital obligations among spouses.

The Bill seeks to bridge these legal gaps by rationalising and harmonising the existing marriage laws. As per Section 2, the Draft Bill’s key objectives include:

• to streamline the legal landscape by consolidating the different types of marriage under a single comprehensive framework;
• to set out clear criteria for the validity of marriages, ensuring legal certainty and reducing disputes related to the recognition of marriages;
• to provide guidelines for the solemnisation of marriages, ensuring that the process is standardised and adheres to legal requirements; and
• to emphasise the importance of registering marriages, creating a central repository for marital records and enhancing the legal status of all marriages.

A pivotal feature of the Bill is its establishment of a uniform minimum age of consent for marriage at 18, eliminating historical gender-based disparities. We firmly believe that this provision aligns South Africa with the United Nations Sustainable Development Goals, particularly in eradicating child marriages and safeguarding the rights of young individuals.

The Bill’s scope encompasses diverse marriage types, from monogamous and polygamous to customary, religious, and same-sex unions. This inclusivity honours South Africa’s cultural and religious diversity and resonates with the Foundation’s mission to safeguard the dignity of all citizens, ensuring their rights to uphold respective traditions while enjoying equal legal protection.

Within this comprehensive framework, the Bill addresses historical gaps that have undermined the recognition and rights of spouses in customary marriages. By presenting a consolidated approach, it not only rectifies legal inequalities, but also aligns with the Constitution’s emphasis on universal access to justice.

While the Foundation recognises the Bill’s comprehensive approach and alignment with human rights standards, we must also address certain shortcomings of the Bill. The Bill’s outlined offences and penalties for non-compliance raise questions about the potential impact on the practice of religious officers and compliance within diverse cultural contexts. The penalties for marriage officers who breach the law by solemnising prohibited marriages, including imprisonment for religious officers who fail to solemnise marriages in accordance with the stipulated provisions, could have unintended consequences. While these provisions aim to ensure compliance and accountability among marriage officers, their application may require careful consideration to prevent infringement on religious practices and cultural sensitivities.

Further gaps that must be addressed in the Bill include recognising polyandry, clarifying the legal status of subsequent marriages, refining the definition of polygamous marriage, reconsidering the definition of lobola, recognising intimate life partnerships and addressing coexisting marriages.

Our submission emphasises the importance of streamlining disparate laws for legal clarity, conflict reduction and equitable treatment across all marriage types. By championing gender equality, rejecting discrimination, and upholding human dignity within marriage, the Bill resonates with South Africa’s global commitments to equal rights and is an important piece of legislation for our nation to uphold equality, dignity and fairness. 

Read our full submission here.