A Green Paper is a government policy discussion paper that details specific issues, and then points out possible courses of action in terms of policy and legislation. It articulates possible solutions that are yet to be adopted by government. The Green Paper is a precursor for a White Paper. The White Paper articulates a policy position of government that has been approved by Cabinet. 

KEY POLICY FOCUS AREA
STATUS QUO
POLICY PROPOSAL
HOW DOES IT AFFECT YOU?
1. MONOGAMOUS  MARRIAGES FOR OPPOSITE SEX SPOUSES

1.1 The Marriage Act 25 of 1961 regulates monogamous marriages for opposite sex spouses. However, other religious marriages which are monogamous and heterosexual are excluded on religious grounds. This includes Hindu and Muslim marriages which are concluded in accordance with their religious rites.

1.2 Monogamous marriages of heterosexual black persons were governed by the partly repealed Black Administration Act 38 of 1927

 
  • In accordance with sections 9 and 10 of the Constitution, the legal framework that will regulate monogamous marriages will include all marriages irrespective of race, religion, culture, sex, gender, nationality, etc.
  • All monogamous marriages will be concluded in accordance with sections 9 and 10 of the Constitution.That is, the legal framework will enable the realisation of equality, non-discrimination and human dignity principles in the marriage institution.
2. POLYGAMOUS MARRIAGES
2.1 The Recognition of Customary Marriages Act 120 of 1998 (RCMA) regulates polygamous marriages for indigenous Black South Africans.
 
2.2 The RCMA does not regulate other polygamous marriages such as Islamic, Jewish, Shembe, KhoiSan marriages and customary marriages concluded with non-citizens.
 
  • In accordance with sections 9, 10 and 31 of the Constitution, the legal framework that will regulate polygamous marriages will include all polygamous marriages irrespective of race, religion, culture, nationality, etc.
 
  • All polygamous marriages will be concluded in accordance with sections9, 10 and 31 of the Constitution. That is, the legal framework will enable realisation of equality, non-discrimination, human dignity principles in the marriage institution. This will include rights to enjoy and practise culture and religion.
3. UNRECOGNISED CUSTOMARY MARRIAGES
3.1 The Recognition of Customary Marriages Act 120 of 1998 makes provision for the legal recognition of both monogamous and polygamous customary marriages, provided they are concluded according to the customs traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.
 
3.2 However, the current marriage statute doesn’t recognise certain customary marriages that are concluded in some African communities, including royal families. This includes the practice of marriages that are concluded for the purpose of giving birth to a future king or heir.
 
  • The marriage legislation must enable the recognition of customary marriages that are practiced in some African communities, including royal families
  • Policy Options:
  • Option 1: The Marriage legislation may recognise the royal family tradition of marrying a principal wife as the designated mother of the future king. In the event that the principal wife is unable to give birth to a future king, the woman that is married by the royal family to give birth to a future king may be recognised by law. However, proper adoption processes must be followed with regards to the registration of children born under these circumstances to avoid future royal family disputes. 
  • Option 2: Recognition of Principal and Supporting wives for all polygamous marriages
  • Customary marriages concluded in Royal families with the purpose of giving birth to a future king will be regulated by law. Such marriages will be concluded in line with section 31 of the Constitution which provides that persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community to enjoy their culture.
 
4. VARIOUS TYPES OF POLYGAMOUS MARRIAGES
4.1 The RCMA provides for the conclusion of polygamous marriages between on man and more than one women (polygyny).
 
4.2 However, the South African law does not recognise the right of a woman to take more than one husband (polyandry).
 
  • During stakeholder consultation, stakeholders such as gender activists argued for the introduction of polyandry in accordance with Section 9 of the constitution.
 
  • If this proposal is adopted, it will protect those who are in polyandrous relationship.
 
5. SOLEMNISATION OF MARRIAGES
5.1 The Marriage Act 25 of 1961 provides for the designation of religious leaders and government officials (Home Affairs and magistrates) as marriage officers. Marriages officers may refuse to solemnise marriages that are incongruent with the provision of this Act including same sex marriages.
 
5.2 The Civil Union Act 17 of 2006 makes similar provisions for the designation of marriage officers. However, since the introduction of the Civil Union Amendment Act in 2020, government officials may no longer refuse to solemnise civil unions for same sex couples.
 
5.3 Other social groups including Traditional Leaders, LGBTIQ+ are not eligible to be designated as marriage officers.
  • In keeping with section 9(3) of the Constitution, the legislation must make provision for all social, religious and traditional communities to apply to be designated as marriage officers.
  • Option 1: Indiscriminative solemnisation of marriages by all marriage officers without exception.
  • Option 2: Indiscriminative solemnisation of marriages by public servants. However, government marriage officers would not be required to perform any ceremonial functions generally associated with marriage. The registration will be perform akin to other registration functions such as birth and death registration.
  • Option 3: Broadening of the scope for the designation of marriage officers from all social groups. This includes all religious denominations, traditional councils and LGBTIQ+community.
 
  • The new legal framework will enable realisation of sections 9 and 10 of the Constitution. That is, the legal framework will enable the realisation of equality, non-discrimination and human dignity principles in the solemnisation and registration of all marriages.
6. CONSENT TO A MARRIAGE
 
6.1 The existing legislation makes provision for the marriage of minors provided that consent which is legally required has been granted and submitted to the marriage officer in writing.
 
6.2 The presence of both spouses is not required for some religious marriages such as Hindu and Muslim marriages.
 
  • No marriage shall be legally entered into without the full and free consent of the intending spouses.
  • No person under the age of 18 years will be permitted to marry.
  • This provision will give protection to minors under the age of 18 and women in religious marriages.
7. REGISTRATION OF CUSTOMARY MARRIAGES
7.1 It is not compulsory for the marriage to be registered. To a certain extent, this explains the low registration rate of customary marriages per annum.
 
7.2 Legislation provides for the registration of a customary marriage by one partner irrespective of whether or not the other partner is still alive. This leads to fraudulent registration of customary marriages.
 
7.3 Legislation does not make provision for entering into a customary marriage with non-citizens. This poses a challenge when such marriages are entered into especially amongst persons who are members of the same clan but are separated by a borderline.
 
  • The registration of customary marriages should be made compulsory. Further, to curb fraudulent registration of customary marriages, the law must make it compulsory for all spouses to appear before the registration authority.
  • The provision that allow one partner to register marriage should only apply when the marriage is registered posthumously; that is, if the other partner is deceased.
  • Legislation must make it permissible for customary marriage to be entered into with non-citizens to accommodate cross-border communities
  • This provision will benefit those who are married in terms of the customary law, including customary marriages concluded between a citizen and a non-citizen (cross border communities).
8. TRANSITIONAL MECHANISMS TRANSGENDER COUPLES
8.1 The existing legislation does not provide a transitional mechanism for persons who initially married under the provisions of the Marriage Act but who subsequently undergo a sex change.
  • As a matter of policy, there must be transitional mechanisms for persons who undergo sex alteration.
 
  • This proposal will enable transgender persons to retain their marital status despite their transition from one sex to another sex status.
9. DIFFERENT MARRIAGE REGIMES
 
9.1 There are three marriage regimes applicable in South Africa in terms of the Matrimonial Property Act 88 of 1984. That is, marriage in community of property, marriage out of community of property with accrual and marriage out of community of property without accrual.
 
9.2 Marriage in community of property is the default marriage regime in South Africa. If the intending spouses marry without an ante nuptial contract, their marriage will be automatically in community of property. 
 
9.3 Some religious marriages are automatically out of community of property.
 
  • No marriage regime should be regarded as a default position. During pre-marital counselling, the marriage officer must ensure that the intending spouses understand the legal implications of a chosen marriage regime.  
  • All intending spouses will be given an opportunity to make an informed decision on their preferred marriage regime during pre-marital counselling.
10. MARRIAGE LEGAL FRAMEWORK
10.1 There are three (3) legislation that regulate marriages in South Africa:
  • The Marriage Act 25 of 1961 (monogamous marriage for opposite sex couples);
  • The Recognition of Customary Marriages Act 120 of 1998 (polygamous marriages for opposite sex couples who are black South Africans); and
  • The Civil Union Act 17 of 2006 (monogamous partnerships for both same and opposite sex couples).
  • In order to enable regulation of all marriages in accordance with sections 9, 10, 15 and 31 of the Constitution, the following legislative options are recommended:
  • Option 1: Single Marriage Act. A single Marriage Act has a unified set of requirements and consequences applying to all marriages. This option may not be suitable for the country’s mixed legal system and might not pass the Constitutional muster.
  • Option 2: Omnibus or Umbrella Marriage Act. The omnibus legislation is a single act that will contain different chapters for diverse set of legal requirements of civil marriages, civil unions, customary marriages, and other marriages that are not regulated by the current legislation.
  • Option 3: Parallel Marriages Acts. The retention of the status quo is also an option that requires consideration. This option will require enactment of more marriage legislation that must cater for the marriages that are excluded by the current marriage legislation.
  • The new legal framework will enable regulation of all marriages in accordance with sections 9, 10, 15 and 31 of the Constitution.

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