Published Date: July 13, 2023

Twenty-nine years into democracy, our society continues to evolve and undertake efforts to reverse the injustices of our past. The legislature plays a huge role by changing legislation to ensure that it is in line with the goals South Africa wishes to achieve.

The most recent proposed change, which we welcome, is the Draft Marriage Bill of 2022.

Historically, Family Law has developed in a fragmented manner, resulting in three different pieces of legislation dealing with marriages, namely the Marriages Act, the Civil Unions Act and the Recognition of Customary Marriages Act.

The purpose of the new Marriages Bill is to have a single act that recognises all marriages, regardless of the spouses’ sex, gender, sexual orientation, religious, cultural or other beliefs.

The ultimate goal is to bring the legislation regarding marriages in line with the Constitution. The State has an obligation to respect, promote, protect and fulfil the Bill of Rights, which includes promoting equality, dignity and freedom of religion and belief, which the Bill aims to achieve.

Once in force, the new Marriages Act will deal with the requirements to enter a valid marriage, registration of a marriage, dissolution and legal consequences of a marriage, consent to marriages, age determination, equal legal status of spouses, and solemnisation of a marriage.

To name but a few highlights of the Bill:

1. The Bill aims to eradicate child and forced or arranged marriages, in line with international standards and obligations. Any person who enters, consents to or solemnises a marriage where one spouse is under the age of 18 will be guilty of an offence in terms of the Bill, which offence may carry criminal sanctions.

2. The Act will not operate retrospectively and will therefore have no effect on any marriages which are currently deemed valid in terms of the existing laws. Any marriages entered after the Act has come into force will have to comply with the requirements prescribed by the Act to be considered valid. If the requirements are not met, the marriage will be null and void.

3. Polygamous marriages are also recognised and the requirements for a valid polygamous marriage are prescribed.

4. All spouses will have equal legal status and capacity subsequent to entering into a marriage. Spouses will therefore be able to acquire and dispose of assets, enter into contracts and litigate, whereas this was previously limited in certain circumstances.

The Bill is very clear that no matter the form of marriage, any person who wishes to enter a marriage must be 18 years or older, must have the necessary legal capacity to enter the marriage and must have given free and informed consent to be married. In addition, a customary or religious marriage is required to be negotiated, entered, or celebrated in terms of the respective custom or religion.

It must further be noted that the Bill requires all marriages to be registered. It was not previously required for customary marriages to be registered in terms of the Recognition of Customary Marriages Act. Those that are in marriages which are not registered but entered before the Act comes into force will have a grace period of 12 months to register their marriages. In future, it will be the duty of the marriage officer to submit all documentation for registration of a marriage within 14 days of the marriage being solemnised.

Cabinet has approved the publication of the Draft Marriage Bill of 2022 for public comment on or before 31 August 2023. Public comments are critical as they will shape the development of the new legal framework.

Courtney Elson
Associate | Attorney