Adv Nadene Badenhorst, FOR SA Legal Counsel
On Monday 8th July, Freedom of Religion South Africa (FOR SA) met with representatives of the Department of Home Affairs (DHA) to discuss their proposed policy on marriage in South Africa. This policy will set the platform for the possible adoption of a single “Marriage Act”, governing all marriages entered into in South Africa. This could either take the form of a unified set of requirements (and possibly consequences) applying to all marriages, or a single Act with different chapters which reflect the current diverse set of legal requirements for and consequences of civil marriages, civil unions, customary marriages, Muslim and possibly other religious marriages (i.e. an omnibus or umbrella marriage Act).
The meeting took place as part of the DHA’s engagement with different stakeholders to understand their experience of the solemnisation and registration of marriages in South Africa and they will use this input to inform the development of the proposed policy. It was a positive meeting during which FOR SA was able to share its experience in this regard. We particularly highlighted the increasing pressure experienced by religious marriage officers – many of whom believe that, according to Scripture, marriage is the permanent union of one man and one woman – to solemnise same-sex marriages. Many of them have already expressed the sentiment that, should they be forced by law to do so, they would rather hand in their marriage licence than to act against their religious convictions and beliefs.
Background to the proposed policy
In South Africa currently, there is no single law governing the solemnisation and registration of marriages. Instead, there are various pieces of legislation governing different civil marriages, civil unions, customary marriages, etc.
Historically, the Marriage Act of 1961 governed marriages between one man and one woman. In terms of this Act also, any minister of religion, or any person holding a responsible position in any religious denomination or organisation, can be designated as a marriage officer for the purpose of solemnising marriages according to Christian, Jewish or Mohammedan rites or the rites of any Indian religion (i.e. a religious marriage officer).
Following the judgment of the Constitutional Court in Minister of Home Affairs v Fourie (2005) which effectively legalised same-sex marriage in South Africa, Parliament adopted the Civil Union Act of 2006. This Act allows heterosexual, and homosexual, couples to get married or conclude a civil union (which is legally no different to a marriage, and essentially a matter of terminology). In terms of this Act also, a religious denomination or organisation may apply to solemnise marriages (including therefore same-sex marriages) under this Act. Importantly, a person who is a religious marriage officer under the Marriage Act is not automatically also a marriage officer for purposes of the Civil Union Act, but must apply specifically to have such a licence.
Customary marriage (i.e. the potentially polygynous marriages of indigenous African people) is in turn governed by a mixture of statute (i.e. Recognition of Customary Marriages Act of 1998), the common law and norms of customary law.
While Muslim, Hindu and other religious marriages can legally be concluded under the Marriage Act, unless they comply with all the legal technical requirements of the Act (including the marriage formula and presence of witnesses), they are not valid. For this reason, they often enter into both civil marriages (under the Marriage Act) and religious marriages. The 2003 South African Law Reform Commission (SALRC) Report on Islamic Marriages recommended the adoption of legislation to give legal effect to these marriages, but no law has yet been passed. An appeal against the order compelling government to pass such a law in Women’s Legal Centre Trust v President of the RSA; Faro v Bingham; Esau v Esau (2018) is currently pending before the Supreme Court of Appeal (SCA).
In addition to the aforegoing issues around the solemnisation of different types of marriages, there are also issues around the registration of marriages, marriages with foreign nationals, as well as fraudulent marriages and marriages of convenience that need to be addressed. Our current law also does not recognise life and domestic partnerships outside of marriage.
It is against this background that the Ministry of Home Affairs proposed an investigation into the development of a single Marriage Act for South Africa, which would give expression to the constitutional principle of equality and non-discrimination (s 9 of our Constitution).
As part of its investigation also, the Ministry instructed the SALRC to consider and comment on the need for and proposed content, of such an Act. To this end, the SALRC recently published Issue Paper 35 (“Single Marriage Statute”), which is now open for public comment until 31 July. (To view the Issue Paper, and for details on how to comment on the Paper, click here.)
FOR SA’s meeting with the DHA
During our meeting, the DHA explained that their primary focus in the proposed policy would be the following: marriages that involve minors (children below 18 years); polygamous marriages; and LGBT+ issues. With regard to LGBT+ issues and the issue of solemnisation of same-sex marriages by religious marriage officers in particular, the DHA explained that the proposed policy would put forward various options without expressing a particular preference for one or the other:
- Maintain the status quo (i.e. religious marriage officers have the right to, on grounds of conscience, religion and belief, only solemnise heterosexual marriages); OR
- Compel all religious officers by law to solemnise heterosexual and homosexual marriages (i.e. you have the right to choose to be a religious marriage officer or not, but if you choose to be one, you have to be prepared to solemnise all marriages); OR
- Remove the right of religious organisations / leaders to solemnise marriages altogether, with the result that only the State can solemnise (and register) marriages.
While option c) will once and for all remove the increasing (social and legal) pressure exerted on religious marriage officers to – potentially against their religious convictions and beliefs – solemnise same-sex marriages, it is a major question whether the already burdened State has the capacity to be the sole functionary of the tens of thousands of marriages concluded in every province in South Africa every month. As it is, persons who want to get married before a State marriage officer, often have to wait weeks if not months to get an appointment and unless this problem is resolved, it is difficult – from a practical point of view – to see how option c) could realistically work.
At the meeting, FOR SA also highlighted our concerns with the Civil Union Amendment Bill which is still before Parliament. We pointed out that the conscientious objection clause (making it possible for State marriage officers who have a conscientious objection to solemnising same-sex marriages, to “opt out” of doing so) included in the Civl Union Act, was not an oversight or a mistake. Rather, it was a direct application of the Constitutional Court’s statement in the Fourie case that marriage officers whose conscience might be compromised if obliged to solemnise same-sex unions, should have their rights protected and respected.
In so far as the process and timelines around the proposed marriage policy are concerned, the DHA explained that they are now in the process of meeting crucial stakeholders for their input prior to developing the policy. The objective is to by March 2020 have a draft policy for the Minister to approve for formal consultation. Thereafter, during 2020 and 2021, extensive consultation on the policy will follow. The objective is to have a finalised government policy by March 2021 which can be presented for Cabinet approval. Once Cabinet has approved the policy, a Bill will be drafted which will follow the normal parliamentary procedures of public comment and consultation.
FOR SA will continue to engage with the DHA, and also its constituency, in this regard to make sure the rights of religious organisations and marriage officers remain protected.
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