On 4 May 2021, the Minister of Home Affairs, Dr Aaron Motsoaledi published the Green Paper on Marriages in the Government Gazette, inviting interested members of the public to comment on its contents. 

The Good …

The aim of the Green Paper is to review the inconsistencies and infringements in our existing parallel marital laws and create a Marriage Policy that utilizes the principles enshrined in our country’s Constitution, with the aim of having a harmonized piece of legislation on marriage, that will apply to all those who reside in South Africa and choose to marry in South Africa, regardless of sexual orientation, religious and cultural beliefs or even nationality in some cases. 

Bearing in mind our racially charged past, the Green Paper takes into account the views and wishes of various sectors of communities that feel excluded and stripped of their Constitutional rights to dignity, equality and freedom to marry whoever they choose. 

Under our current laws, religious marriages concluded between those of the Jewish, Islamic, Hindu, Tamil and Rastafarian faith, are still not legally recognized in our country unless the religious marriage is then solemnized by way of a corresponding civil marriage and therefore made ‘’legal’’. Failure to do so under our current law often places women in a vulnerable position during divorce proceedings and may result in an unequitable distribution of assets from the religious marriage or protracted and costly litigation simply to secure what should have been awarded to them in the first place. 

Customary marriages can be registered under the Recognition of Customary Marriages Act, 120 of 1998 however failure to register the marriage, timeously or at all, with the Department of Home Affairs, does not invalidate the marriage. However, many parties in monogamous customary marriages elect to also have a ‘’white wedding’’ i.e. civil ceremony in order to legalize their marriage. Many polygamous customary marriages remain unregistered which often leaves very little to no legal protection for wives, in the event of the death of the husband or should the husband elect to divorce or separate from that wife.

In addition, the Green Paper highlights that it has been universally agreed among all sectors that the legal age for consent to marry should be the age of 18, thus doing away with marriage of a minor through the consent of a parent.  

The Bad…

Unfortunately, many religious communities do not recognize same-sex relationships, those who undergo gender re-assignment or transgender individuals as this does not form part of their beliefs or culture. Marriage is strictly between a man and a woman.

While the Civil Unions Act, 17 of 2006, allows for same sex couples to marry or enter into a formal civil union, a marriage officer is afforded the opportunity to refuse to solemnize a same-sex union and/or marriage (Section 6 of Act 17) based upon a variety of reasons. 

It is clear that these individuals’ Constitutional rights are being infringed and such infringement to their rights cannot continue, which would require that the Marriage Act and/or Civil Union Act be amended to rectify these failings.

And the Polyandry 

A heated topic surrounding the Green Paper is the issue of Polyandry. Polyandry allows for a woman to marry more than one man, effectively the opposite of polygamy where a man may marry more than one wife. Polyandry seems to be practiced in remote areas of India, Nepal and Africa where land and food are scarce and between two brothers who share a wife as the belief is that children of these unions are more likely to be cared by men who are related to one another, than those who do not have family ties. 

Many religious and traditional leaders In South Africa have objected to allowing polyandrous marriages on the basis that it is not part of their cultural and/or religious beliefs. While this may be, it raises the question of gender bias, that is – if a man can marry more than 1 woman, why can’t a woman be afforded the same right? 

The Way Forward 

The Green Paper is leaning towards creating an ‘’Omnibus or Umbrella Marriage Act’’ rather than one singular Marriage Act or retaining with amendments, the existing Acts that apply to Civil Marriages, Customary Marriages and Civil Unions. 

The Omnibus or Umbrella Marriage Act may contain a section that applies to each type of marriage in South Africa and the overarching principles of the Constitution will be used to draft it, with the proposed legislation is to be approved by Parliament during 2024. 

Whichever way the legislature decides to address the different types of marriages in our country, we can be assured that there will be a resultant impact on the laws relating to the matrimonial property regimes, property law, children and the law of succession. 

A link to The Green Paper can be found here: https://www.gov.za/sites/default/files/gcis_document/202105/44529gon398.pdf