CONCEPT PAPER - SEPTEMBER 2019

 

1. INTRODUCTION

In 1994 South Africa inherited a marriage regime that was based on the Calvinist Christian and Western tradition which stemmed from the era where the state and church were mutually reinforcing if not synonymous.

Accordingly, there are strong references in some of the laws governing marriage that harken to the religious marriage rituals practiced in the Christian and Western marriages. In the new era of democracy, the values of equality and diversity underpin our quest for nationhood, and all religious and cultural practices are given equal recognition and status in line with Section 15 (1) of the Constitution.

Instead of creating a harmonized system of marriage in South Africa, the State has sought to give recognition to different marriage rituals through passing a range of different marriage laws. As a result, there are now parallel structures and processes that stand side by side. Marriages in SA are regulated through the following legislation:

1. The Marriage Act No. 25 of 1961 as amended, and its associated regulations (monogamous marriage for opposite sex couples);
2. The Recognition of Customary Marriages Act No. 120 of 1998 (polygamous marriages for opposite sex couples  - polygyny); and
3. The Civil Union Act No. 17 of 2006 (monogamous partnerships for both same and opposite sex couples). 

 

2. PROBLEM STATEMENT

The problem statement is summarised below:

1. The legislation that regulates marriages in South Africa has been developed without an overarching policy that is based on Constitutional values (e.g. equality, non-discrimination and human dignity) and the understanding of modern society dynamics.
2. The current legislation does not regulate some religious marriages such as the Hindu, Muslim and other customary marriages that are practiced in some African or Royal families.
3. The Recognition of Customary Marriages Act 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.
4. The legislation does not make provision for couples who change their sex status while married under the Marriage Act of 1961 but want to retain their marital status without going through divorce as required by the current law.
5. While in terms of the African tradition chiefs/traditional leaders have a recognized role in the conclusion of a customary marriage, the legislation does not extend a similar responsibility to traditional leaders.
6. Given the diversity of the SA population it is virtually impossible to pass legislation governing every single religious or cultural marriage practice.
7. It is against this background that the DHA is embarking in the process of developing a marriage policy that will lay a policy foundation for drafting a new single or omnibus legislation.
8. The new single Marriage Act will enable South Africans of different religious and cultural persuasions to conclude legal marriages that will accord with the doctrine of equality, non-discrimination and human dignity as encapsulated in the Constitution of the RSA.

 

3. SCOPE OF THE MARRIAGE POLICY

Key issues that will be covered in the policy are summarized below:

1. Recognition of the equality, non-discrimination and human dignity values in the marriage legislation;
2. Indiscriminative solemnization of all marriages by marriage officers (DHA and possible religious marriage officers)
3. Alignment of the Marriage, Matrimonial property and Divorce legislation to address matrimonial property and intestate succession matters in the event of the marriage dissolution. 
4. Religious and customary marriages that are not recognised by the current legislation  - Case law reference - the Cape High Court judgment on the recognision of Muslim marriages;
5. The role of various stakeholders in the solemnization, registration and dissolution of marriages, including traditional leaders);
6. Change of sex status for married transgender/inter-sexed people and implications for couples who want to retain their marital status.
7. Marriages that involve foreign nationals. That is, non-citizens who are appointed as religious marriage officers and solemnisation of marriages that involve foreign nationals.
8. Marriages that involve minors (persons under 18 years). The current legislation allows for the marriage of minors which is contrary to the Children’s Act.
9. Fraudulent marriages and marriages of convenience. These types of marriages are either facilitated by corrupt officials or citizens who enter into marriages with foreign nationals for economic reasons.
10. Polygamous marriages that involve non-citizens especially cross-border communities or citizens of our neighbouring countries.
11. Challenges associated with marriages that are not registered with the Department of Home Affairs. Such marriages often surface when there is dispute over the estate between spouses.

 

4. HIGH-LEVEL IMPLEMENTATION PLAN

 

5. THE MINISTERIAL ENGAGEMENTS ON THE MARRIAGE POLICY

Given the complexity of the issues that must be addressed through the marriage policy, the department decided on a facts-finding mission in the form of ministerial dialogues with key affected stakeholders and role players. These engagements will enable the interest groups to express their views on the issues that must be addressed in the marriage policy and legislation. These initial engagements are part of the process of developing a new marriage policy which will inform the drafting of a single marriage legislation. During the 2020/21 financial year the department will undertake extensive consultations based on the draft policy that would have been drafted on the basis of the initial engagements and research.

 

6. FORMAT OF THE MINISTERIAL DIALOGUES

The dialogues will be sector and interest based. However, once the dialogues have been concluded, the department will convene an inter-sectoral  colloquium to consider the draft marriage policy. The department intends to host the following ministerial stakeholder engagements:

1. Dialogue with Human Rights, Gender and Children’s activists: The main focus of this dialogue is on the mainstreaming of equality, non-discrimination and human dignity principles in the marriage statute;
2. Dialogue with Religious Leaders: The purpose of the dialogue is to engage with religious leaders on how to embrace religious practices in the marriage law while observing Constitutional values such as equality, non-discrimination and human dignity. The dialogue will also focus on the role that could be played by religious leaders in the solemnization and registration of marriages; 
3. Dialogue with Traditional Leaders: The purpose of the dialogue is to engage with traditional leaders on how to embrace cultural practices in the marriage law while observing Constitutional values such as equality, non-discrimination and human dignity. The dialogue will also focus on the role that could be played by traditional leaders in the solemnization and registration of marriages.
4. Roundtable with academics and think-tanks (thought-leaders and practitioners): This is a scholarly dialogue that will focus on key literature (local and international) on the solemnisation, registration and dissolution of marriages.
5. Inter-ministerial roundtable: The purpose of this dialogue is to consider the first draft of the marriage policy. Participation will include, amongst others:
   • Department of Home Affairs,
   • Department of Social Development,
   • Department of Health,
   • Department of Cooperative Governance and Traditional Affairs,
   • Department of Justice and Constitutional Development, and
   • Department of  Women, Youth and Persons with Disabilities
6. Inter-sectoral colloquium: This colloquium will be hosted in the 2020/21 financial year with the key representatives of the sectors and interest groups. The purpose of this engagement will be to consider and make input of the draft marriage policy proposals.

 

7. ENGAGEMENTS RULES AND PROTOCOLS

The following rules and protocols will observed in all of the stakeholder engagements:

1. While there is no government position on the new marriage policy, the department will not support any policy proposal that is not supported by the Constitution which is the Supreme law of the country;
2. The rights to freedom of thought, conscience and religion will be protected by all participants;
3. The department reserves the right to exclude from participation any person or group who is considered to be disruptive.
4. Participation shall be on the basis of an invitation. Any trespassers will be dealt with in accordance with the relevant legislation.

 

8. PARTNERSHIPS AND NATIONAL PROGRAMME

In hosting these dialogues, the department will partner, amongst others, with institutions of higher learning, government departments, NHTL, Civil Society Organisations, etc. The partnership terms and conditions will be negotiated with each institution to ensure that maximum value is derived from the event.

 

9. OTHER MEDIA PLATFORMS

The following DHA media platforms can be utilised to submit suggestions:

1. The enclosed questionnaire can be submitted to: This email address is being protected from spambots. You need JavaScript enabled to view it.
2. Other suggestions can be submitted to the following media platforms:
   1. Faceboock page - facebook.com/HomeAffairsZA
   2. Twitter account - @HomeAffairsSA

 

INTERVIEW SCHEDULE FOR THE MARRIAGE POLICY

The interview schedule is structured in 8 main themes and subthemes. These themes and their subthemes include open-ended questions which are aimed at capturing the participants’ knowledge of the framework for recognising marriages in South Africa. The input that will be provided by participants will assist the Department of Home Affairs research team in drafting the first policy on marriages in South Africa.

Thematic area 1: Solemnisation of marriages

1. Kindly share your experience on the solemnisation of the following marriages:

a. Civil Marriages (Marriage Act 25 of 1961)

b. Customary Marriages (Recognition of customary marriages 120 of 1998)

c. Civil Union (Civil Union Act 17 of 2006)

2. Are there any challenges that you have encountered or observed during the solemnisation of the above marriages?

3. What should be done by government and other stakeholders (solutions) in order to improve the solemnisation of the above marriages?

 

Thematic area 2: Registration of marriages

4. Kindly share your experience on the registration of the following marriages:

a. Civil Marriages (Marriage Act 25 of 1961)

b. Customary Marriages (Recognition of customary marriages 120 of 1998)

c. Civil Union (Civil Union Act 17 of 2006)

5. What do you attribute to the persistence of unregistered marriages?

6. Are there any challenges that you have encountered or observed during the registration of the above marriages?

7. What should be done by government and other stakeholders (solutions) in order to improve the registration of the above marriages?

 

Thematic area 3: Registration of marriages that involve foreign nationals

8. Kindly share your experience on the registration of marriages that involve foreign nationals.

9. Are there any challenges that you have encountered or observed during the registration of the marriages that involve foreign nationals?

10. What should be done by government and other stakeholders (solutions) in order to improve the process for the registration of marriages that involve foreign nationals?

 

Thematic area 4: Recognition of the equality principle in the marriage legislation

11. Section 9 of the Constitution of South Africa guarantees equality before the law and freedom from discrimination to the people of South Africa. In your view, are there elements of the current marriage legislation that do not meet this requirement? Please substantiate your response.

12. What should be done by government and other stakeholders (solutions) in order to align the marriage legislation with Section 9 of the Constitution?

  

Thematic area 5: Marriages that are not recognised by the current legislation

13. Kindly share your knowledge on marriages that exist but are not recognised by the law of the Republic.

14. In your view, why such marriages are not covered by the current legislation?

15. What should be done by government and other stakeholders (solutions) in order to legalise such marriages or to align such marriages with the law, including the Constitution?

 

Thematic area 6: Marriages that involve minors (persons under 18 years)

16. The legislation makes provision for the solemnisation of marriages that involve minors. Kindly share knowledge or experience on the solemnisation of marriages that involve minors.

17. In your view, should this practice (marriage of minors) be continued or discontinued? Please substantiate your response.

 

Thematic area 7: Fraudulent marriages and marriages of convenience

18. Kindly share knowledge or experience on dealing with fraudulent or marriages of convenience.

19. In your view, what gives rise to fraudulent or marriages of convenience?

20. What should be done by government and other stakeholders (solutions) in order to eliminate fraudulent or marriages of convenience?

 

Thematic area 8: Regulation of life and domestic partnerships

21. The current marriage legislation does not regulate life and domestic partnerships. Kindly share your thoughts on whether or not such partnerships should be regulated under the marriage legislation?

  

Thematic area 9: General

22. Is there any issue related to the recognition of marriages that the Department of Home Affairs should take into consideration during this study?