FOR SA’s submission on Draft Marriage Bill focuses on protecting marriage officers

‍Introduction:

On 31 August 2023, FOR SA made a written submission to the Department of Home Affairs in response to the Department's Draft Marriage Bill.

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The Bill aims to bring all of South Africa’s various existing marriage laws under one legislative umbrella. From a religious freedom point of view, FOR SA’s submission focussed on the importance of expressly protecting the religious freedom of religious marriage officers (i.e. pastors, imams, rabbis, priests etc. that hold a marriage licence).

Submission in a nutshell:

FOR SA emphasised to the Department that a religious marriage officer’s refusal to solemnise a marriage that does not conform to his or her own religious convictions and beliefs, and/or the rites, formularies, tenets, doctrines or discipline of the marriage officer’s denomination or organisation, is fair discrimination (which is permissible in South African law).

For this reason – and to ensure the Bill complies with both the Constitution and international law – FOR SA strongly argued for the inclusion of a clause (similar to section 31 of the (current) Marriage Act) that expressly protects religious marriage officer’s constitutional right to religious freedom (as well as the right to religious freedom of the religious organisations to whom these marriage officers belong). We pointed out to the Department, that should it fail to insert such a clause, this will likely result in the Bill being interpreted as choosing to remove such protection from religious marriage officers. This in turn, will open the Bill to a constitutional challenge.

Conclusion:

The Bill is currently still with the Department of Home Affairs which now has to consider all the public comments it received. Should the Department proceed with the Bill, it will be tabled in Parliament, which will also open the Bill for public comment. FOR SA will keep monitoring the process and inform the public about any threats to religious freedom and opportunities to comment on the Bill.

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