With the aim of creating one single consolidated marriages Act, Home Affairs Minister Aaron Motsoaledi met with religious leaders to discuss the development of the marriage policy and related matters.
Currently, marriages in South Africa are regulated through three pieces of legislation – Marriage Act 25 of 1961 (for monogamous marriage for opposite sex couples), Recognition of Customary Marriages Act 120 of 1998 (polygamous marriages for opposite sex couples) and Civil Unions Act 17 of 2006 (monogamous partnerships for both same and opposite sex couples).
The new marriage policy will inform the drafting of a single marriage Act which will replace the existing Acts.
A new single marriage Act will enable South Africans of different sexual orientation and religious and cultural persuasions to conclude legal marriages that will accord with the constitutional principle of equality.
Speaking to attendees, Motsoaledi said the department’s journey is still long but they expect to complete the modernisation of the marriage regime in 2021.
“Our engagement in developing a new marriage regime must be guided by the Constitution which enjoins the state to not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth,” he said.
Motsoaledi said faith leaders, unlike other role players, have a deeper association with the Department of Home Affairs because some of them are marriage officers.
The Department of Home Affairs has 16 363 designated civil marriage officers throughout the country, of these, 14 945 are faith leaders and only 1 418 are Home Affairs officials.
For civil union marriages, there are 543 designated officers of which 309 are Home Affairs officials and 234 are faith leaders.
“Currently, there is no law which recognises the marriage practices and rites of Muslim, Jewish and Hindu faiths. Another area of concern is that the existing laws prohibit people from marrying their relatives, but there is no law which prohibit boys younger than 18 and girls younger than 16 from getting married.
“Most underage people who end up married are young girls.
“There were 25 390 divorces which were concluded in 2017. Statistics show that four out of 10 marriages ended in divorce before their 10-year anniversary.
“Most divorces involved minors. In 2016 and 2017, there were 103 and 72, respectively, marriages which involved people under 18 years. This reality goes against the commitment we made as a country through the SADC Protocol on Gender and Development which calls for ending child marriages,” he said.
The Minister of Home Affairs further highlighted the second challenge the department is confronted with, which is the scourge of fake marriages.
He said the department receives around 2 000 queries of fake marriages a year.
“In the period between April 1, 2018, and May 31, 2019, the department came across 2 132 cases of fraudulent marriages. Of these, 1 160 were found to be indeed fake and were annulled by the department.
“But 646 were found to be legitimate, even though undesirable, meaning they can only be annulled through a court process. These occur when people marry each other for convenience. This happens between a South African and a non-South African. The South African, mostly women, is rewarded with huge sums of money and the non-South African gain easy citizenship through this marriage.”
One of the things Motsoaledi said they need to consider to develop this modern marriage policy is whether or not they should introduce a requirement to have marriage officers renew their designation every five years.
“The Department of Justice and Constitutional Development is revising the Divorce Act to align it to the provisions of the Constitution.
“We are working with them to ensure that our work to develop a single marriage policy and their revision of the Divorce Act are aligned,” he said.
Motsoaledi said he is still going to meet with traditional leaders, academia and government departments in order to furnish this policy which will consist of three principles, including equality, non-discrimination and human dignity.
