Parliament considers new marriage law

Introduction

Parliament is considering a new Marriage Bill. The Bill is set to simplify and improve the fragmented South African marriage law system.

Currently, South Africa has three marriage laws. The Marriage Act covers monogamous heterosexual marriages. The Civil Union Act accommodates same-sex unions. The Recognition of Customary Marriages Act covers traditional African (including polygamous) marriages.  

The Bill is the end product of a long and extensive public consultation process which first produced the White Paper on Marriage in South Africa followed by a draft Marriage Bill. (A White Paper sets the official government policy position on a particular issue. A bill is a law in draft form.)

The current Marriage Bill was introduced in Parliament in December 2023.
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FOR SA involvement and stance

Throughout, Freedom of Religion (FOR SA) was involved in the law and policy-making process. We contributed to the development of the White Paper and commented on the departmental draft bill. We also delivered substantive written submissions on the revised parliamentary bill. Next, we intend to participate in the upcoming provincial and parliamentary public hearings.

Generally, FOR SA supports the White Paper as well as the draft and current versions of the Bill.

Since FOR SA is faith-neutral, our concerns are based on whether the Marriage Bill protects and promotes – or threatens – the religious freedom of all South Africans. We are mandated to uphold the constitutional right to freedom of religion impartially.

We recognise and respect that persons of faith and their communities may have wider concerns than ours. For example, concerning the definition of marriage and whether this includes or excludes certain relationships.

Public hearings

Meaningful public engagement helps Parliament understand and consider diverse views on marriage. For this reason, we encourage all South Africans to have their say on the Marriage Bill by participating in the upcoming provincial public hearings.

The provincial hearings will kick off in Gauteng on 18 and 19 November 2024. These hearings will be held in Ekurhuleni, Tshwane, Sedibeng and the West Rand districts.

Public consultation will continue into 2025, with hearings in other provinces (starting with KwaZulu Natal) and in Parliament.
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Positive aspects of the Bill

Legal protection of religious marriage officers

The Bill protects religious marriage officers expressly. This means they can refuse to solemnise any marriage not condoned by their religious beliefs and values (or the tenets of faith and doctrines of their organisation). (This is a continuation of the religious marriage officers’ current legal protection.)

This is a welcome improvement. The departmental version of the bill did not protect religious marriage officers specifically. Initially, the DHA contended that their continued protection was implied. In the end, the Department heeded FOR SA’s caution that the express protection of religious marriage officers was non-negotiable.

Legal recognition of religious marriages

The Bill recognises all existing marriages irrespective of whether it was concluded in terms of marriage law or religious rites. This is a welcome and overdue development. The non-recognition of certain religious marriages leaves children and surviving or divorced spouses vulnerable and without legal recourse.

In future, the requirements for a valid marriage will be minimal and reasonable (relating to age, consent, legal capacity, and witnesses). In addition, to be recognised by the law, a religious marriage can be concluded by following the beliefs, practices and requirements of that particular religion.

Eligibility to become marriage officer

The Bill will expand the categories of who become marriage officers. It will no longer be limited to religious marriage officers and civil marriage officers. Anyone holding a responsible position in a religious, cultural or secular organisation will be able to apply. This means everyone can have access to a marriage officer able to solemnise their marriage in line with their own beliefs and practices.
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Problematic aspects of the Bill

Failure to protect civil marriage officers’ conscience rights

The Bill fails to protect the religious freedom of civil marriage officers. This includes employees of DHA and magistrates. They cannot refuse to solemnise a marriage based on their sincerely held religious beliefs.

FOR SA recognises that South Africa is a diverse society in which all people are equal in dignity and before the law. The DHA has a constitutional duty to provide marriage services on an equal and fair basis to all.

We also recognise that South Africans do not leave their right to religious freedom behind at home when they leave for work. The Constitution specifically recognises religion, belief and conscience as equality rights. This means discrimination based on any of these grounds is deemed automatically unfair (i.e. unlawful).

The DHA’s own White Paper offers a practical solution to this apparent conundrum: limit civil marriage officers to formalising or registering marriages – as opposed to performing ceremonial or religious functions. Only attending to the legal and administrative aspects of concluding a valid marriage, is more aligned to the neutrality appropriate for government officials.

This way the DHA can fulfil its constitutional obligations – to both couples seeking marriage services and to state-employed marriage officers. This will uphold the religious freedom of civil marriage officers and resolve conscientious concerns.

Inadvertent criminalisation of religious leaders

FOR SA is concerned that the Bill unintentionally criminalises religious leaders who only perform the religious component of a marriage ceremony. In this scenario, the religious leader is not a marriage officer and cannot legally perform a valid marriage ceremony. The couple is fully aware of this and has the legal component of their marriage concluded by a marriage officer (religious or civil).

The text of the Bill can be improved to resolve this issue.

Click here for a summary of FOR SA's submissions on the Marriage Bill.
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Summary of parliamentary process ahead

The Bill is currently being considered by the National Assembly (NA) (the first house of Parliament). The Portfolio Committee on Home Affairs (a NA committee) must first complete its public consultation process. Then, to deliberate on the Bill, public comments and input from the DHA and parliamentary legal advisors need to be considered.

If the Committee adopts the Bill, it must be debated and voted on by the NA in a plenary session. If passed by the NA, it will be transferred to the National Council of Provinces (the second house of Parliament) for further consideration.

FOR SA will continue to follow the progress of the Bill and alert our constituency of new developments.