Thank you Programme Director and Deputy Minister of Home Affairs Mr Njabulo Nzuza
Minister of Women, Youth and Persons with Disabilities, Ms Maite Nkoana- Mashabane
Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini- Zuma,
Minister of Justice and Correctional Services, Mr Ronald Lamola
Minister of Social Development, Ms Lindiwe Zulu
Commissioner of the South African Law Reform Commission, Prof Wesahl Domingo
Senior governmental officials,
Ladies and gentlemen.
Colleagues, I’m very grateful to you for taking the time from your busy schedules to be here with us today as we discuss the Draft Marriage Policy. As the Department of Home Affairs, we have already engaged with human and gender rights activists, religious and traditional leaders and academics.
I value your inputs and those which came from your departments when I needed to consult you on aspects of this policy. Your presence here today communicates a message that you view this policy as a very important tool with which to achieve a more equitable and fairer modern society.
This is one of the most critical engagements as I prepare to take the draft policy to Cabinet to seek approval for us to publish it for public comment. We are sharing the draft policy with you because the successful implementation of the policy will depend on strong collaboration between the Department of Home Affairs and your departments.
The draft policy draws from inputs received from the engagements with different stakeholders I referred to earlier and technical consultation the Muslim Judicial Council, Hindu representatives and the Khoisan Community.
The Department has already taken the draft to the following clusters;
- Governance State Capacity and Institutional Development (GSCID) Cluster,
- Social Protection, Community and Human Development (SPCHD) Cluster,
- Justice, Crime Prevention and Security (JCPS) Cluster.
We are indebted to the ground-breaking work done by the SA Law Reform Commission in investigating the possibility of enacting one Act to govern all types of marriages in the country.
As the Deputy Minister has mentioned, the proposed marriage policy that we are working on will enable South Africans and residents of all sexual orientations, religious and cultural persuasions to conclude legal marriages that will accord with the principles of equality, non-discrimination, human dignity and unity in diversity as encapsulated in the Constitution. It is also important to have policy which is aligned to our international and regional commitments.
Chapter Two of the Constitution thus reads: “The State may 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.”
There can be no doubt that our Constitution discourages discrimination based on sexual orientation, cultural and religious beliefs or for any other reason mentioned. In instances where this discrimination is evident, the State has to act against such an injustices.
Background of marriage laws in South Africa
Colleagues, allow me to give you a brief background of our current marriage laws. In 1994 South Africa inherited a marriage regime that was based on the Calvinist Christian tradition which stemmed from an era where the State and the church were mutually reinforcing, if not synonymous.
There are strong references in some of the laws governing marriage which are aligned to religious marriage rituals practiced in the Christian marriages or white weddings, that are characterized by opposite-sex unions and monogamy.
We also inherited the marriage regimes of the former homelands such as Transkei, Venda, Bophuthatswana, Ciskei, Gazankulu, KaNgwane, KwaNdebele, KwaZulu, Lebowa and Qwaqwa.
Currently, marriages in South Africa are regulated through three pieces of legislation;
- The Marriage Act 25 of 1961, covering most white weddings,
- The Recognition of Customary Marriages Act 120 of 1998 and,
The Civil Unions Act 17 of 2006 which regulates same sex marriages.
Even with these three laws, there are limitations which have resulted in the exclusion of some members of our society.
We are implementing these Acts with 16 363 designated civil marriage officers throughout the country. The majority of the marriage officers, at 14 945, are faith leaders with Home Affairs having only 1 418 officials designated to solemnise marriages. In total, there are 543 designated officers for Civil Union marriages of which 309 are Home Affairs and 234 are faith leaders.
Each of our 412 offices has designated officers for customary marriages.
The National Population Register reflects 342 809 customary marriages. Most of these, or 333 387 are registered with one spouse. There are 8 410 who are registered with two spouses. One is registered with 10 spouses.
For an example, the Marriage Act 25 of 1961 does not make provision for couples who change their sex status after undergoing transgender procedures but want to retain their marital status.
The current Recognition of Customary Marriages Act does not regulate some religious marriages such as the Hindu, Muslim and other customary marriages that are practiced in some African or royal families. The non-regulation of such marriages amounts to saying that such marriages are inferior or less deserving of legal protection. This infringes on the rights to dignity, freedom of religion and equality of spouses in such marriages and children born within those marriages.
Furthermore, this legislation does not make provision for entering into a polygamous marriage with non-citizens. This poses a serious challenge when such marriages are entered into especially amongst the community members who are members of the same clan but are separated by a borderline.
While in terms of the African tradition, Chiefs have a recognised role in the conclusion of a customary marriage, the legislation does not extend a similar responsibility to them.
Many customary marriages are not registered simply because DHA offices are far and there is low level of public awareness.
Another issue of concern with the existing legislation is that the Marriage Act allows girls to be married at the age of 16 with parental consent and 18 years for boys. The Recognition of Customary Marriages Act further allows minors to enter into customary marriages with parental consent, without specifying a minimum age limit for boys or girls.
Statistics show that four out of 10 marriages ended in divorce before their 10th year anniversary and most divorces involved minors.
Another associated risk is that of child pregnancies that usually lead to maternal deaths. There is a high number of young girls who die after falling pregnant because their bodies are not fully developed to be able to carry children. Statistics suggests that those who successfully deliver babies have a chance of being divorcees or widows before their 18th birthday.
This reality goes against the country’s constitutional, international and regional obligations which aim to protect children and to act in their best interests. The Children's Act 38 of 2005 has already legislated 18 years as the age of maturity. South Africa has further signed the SADC Protocol on Gender and Development which states that “no person under the age of 18 shall marry, unless otherwise specified by law, which takes into account the best interests and welfare of the child”.
In addition, it is envisaged that the new Marriage policy will also assist us in curbing the instances of fraudulent marriages and marriages of inconvenience. On average, the Department of Home Affairs receives about 2 000 queries about illegal marriages a year.
Some of these happen because of fraud syndicates consisting of DHA officials and some marriage officers outside the department. Such marriage officers knowingly submit fictitious marriages for registration and working with Home Affairs officials, such marriages get registered on the National Population Register.
In other instances, upon investigation some of the marriages are found to be legitimate, even though undesirable. We refer to these as marriages of convenience that can only be annulled through a court process. These marriages occur when people marry each other for convenience.
This happens between a South African and a non-South African. The South African, mostly a woman, is rewarded with money and the non-South African gains easy citizenship through this marriage.
I normally advise people the Home Affairs unites happy people and Minister Lamola’s Justice Department, or the courts to be precise, grant unhappy people their wish to be single again.
It is important that the Marriage Policy is aligned to the work of the Courts in relation to estates when one partner dies or separation of assets when parties dissolve their union.
Proposed new design of the new marriage legislation
To cover the existing legislative gaps that I earlier described, the draft Bill proposes the following approaches to law-making;
Option 1: is a Single Marriage Act which has unified set of requirements and consequences applying to all marriages. The difficulty in this approach is that it may have the unintended consequence of harmonizing irreconcilable legal systems. In that sense it may not be suitable for the country’s mixed legal system and might not pass constitutional muster.
Option 2: is an Omnibus or Umbrella Act which is a single act that contains different chapters that reflect the current diverse set of legal requirements for and consequences of civil marriages, civil unions, customary marriages and other marriages that are not accommodated by the current legislation. It is a harmonization of the existing marriage legislation which aims to remedy and eliminate conflicts between different legal systems although they are allowed their distinct recognition and continuation.
Option 3: is a Parallel Marriages Acts which is the retention of the status quo that requires consideration. Although this option will generally be suitable for the country’s mixed legal system, retaining the status quo would not be consistent with the transformative nature of the country’s constitution. This option will require enactment of more marriage legislation that must cater for marriages that are excluded by the current legislation.
Given South Africa’s diversity, it stands to reason that a multiplicity of perspectives exists on marriage and family in the country. Hence we embarked on an extensive consultation process through the Ministerial dialogues.
We may not and may never be able to satisfy every interest group that we engaged with because of our fundamental differences on some of the issues presented which at times were to the exclusion or detriment of other members of society.
For instance, the Religious sector was vehemently opposed to officiating same-sex marriages as this goes against their belief. However, as we know, President Cyril Ramaphosa has signed the Civil Union Amendment Bill into law meaning that officials at the Department of Home Affairs can no longer refuse to conduct same sex marriages based on their religious or personal convictions.
We have to ensure that the final policy reflects the diverse views of our dynamic society.
Thank you very much
ISSUED BY DEPARTMENT OF HOME AFFAIRS