What you need to know about Government’s new Marriage Policy

by Daniela Ellerbeck
6 June 2022

Introduction:
Since the initial announcement by the Department of Home Affairs that it was planning to establish a policy foundation for regulating all marriages in South Africa, FOR SA has been fully engaged to help ensure – in particular – that the right to religious freedom is respected and protected.  In this context, FOR SA participated in the Department’s ministerial dialogues (with academics, and religious stakeholders respectively) in 2019, attended the Department’s virtual workshops in 2021, and made a comprehensive submission to the Department, with particular emphasis on the position internationally.

Draft Policy:
FOR SA has been constant in our contention that any policy which aims to set the framework for regulating marriages must explicitly protect the constitutional rights of religious marriage officers to solemnise only those marriages which conform to their / their religious organisations’ convictions and beliefs. (See our previous article here.)

The Department published a Draft Marriage Policy for the public’s comment in 2021. To allow as many members of the public to participate in this public process, FOR SA also ran a public awareness campaign using various alerts and videos to inform the people about the potential threats to religious freedom, and how to have their say.

FOR SA’s primary concern was that this Draft Policy, from a religious freedom point of view, still had the potential to force religious marriage officers (of whatever faith) to solemnise marriages which were contrary to their, and/or their organisation’s, religious convictions and beliefs or doctrines.

Success story:
The Department has now published the final version of the policy – the White Paper on Marriages in South Africa. FOR SA is pleased to report that the Policy has taken into account the concerns and objections which FOR SA (and many others) raised.  In our analysis, this White Paper is very balanced and recommends policy interventions / positions which are reasonable, and which accommodate all members of South Africa’s diverse society.

Specifically, the White Paper’s policy recommendation for the solemnisation and registration of marriages (p 30) is to broaden the scope of who can become a marriage officer. This will allow members from all social groups to be designated as marriage officers.  The Department’s position is that provisions should be made for all religious formations to have their own marriage officers who will solemnise marriages according to their religious rights while observing the marriage legislation. Equally, that provisions should be made for all social groups to have their own marriage officers who will solemnise relationships in line with their value systems while observing the marriage legislation. It further recommends that civil marriage officers (i.e. the Department’s employees who are employed as marriage officers), although required to provide marriage services to all members of the society, will not perform any ceremonial (i.e religious functions) generally associated with the solemnisation of a marriage. In our view, this is a welcome splitting between the functions of the State and religious organisations.

Conclusion:
The next step, now that the White Paper has put forward a policy framework, is for a single marriage law to be drafted. The Department is currently busy drafting such a Bill (i.e., proposed law). Early indications are that this legislation will follow an “omnibus” format to allow for the specific tenets of different religious faiths and traditions to be incorporated while ensuring that the requirements of the State are accommodated. This would be in keeping with FOR SA’s previous recommendations, where we opposed a “one size fits all” formula.

FOR SA will follow the process closely and, as soon as this Bill opens for public comment, will notify the public should there be any religious freedom concerns.

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Daniela Ellerbeck

Daniela Ellerbeck is an attorney of the High Court of South Africa. She serves as FOR SA’s Legal Advisor and Parliamentary Liaison. For her full bio, see https://forsa.org.za/about-us/our-team/

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