Dissecting The New Marriage Law In South Africa


The proposed new marriage law in South Africa is set to revolutionise the legal landscape surrounding marriages in the country. With significant changes on the horizon, understanding the ins and outs of this legislation is crucial for all citizens. So what is the proposed Marriage Bill about, and how does it seek to rectify issues in current legislation?

The new marriage law in South Africa aims to unify existing fragmented marriage legislation, recognise all forms of intimate partnerships, prohibit child marriages, and ensure equality and protection for all in the realm of marriage.

As we explore the proposed law in detail, it’s essential to understand its objectives and historical context. Recognising the motivations behind the Marriage Bill is crucial for understanding its significance in reforming the country’s marriage legislation.


What Does The New Marriage Law In South Africa Seek To Rectify?

The current legal framework surrounding marriages in South Africa needs to be more cohesive, with various acts governing different types of marriages. The new marriage law aims to consolidate these laws into one comprehensive piece of legislation, promoting equality and consistency. Despite being in the draft stage, its potential impact is significant.


What Three Laws Is The New Marriage Law In South Africa Trying To Amalgamate?

The proposed legislation seeks to merge three existing laws:


1. Marriage Act:

The Marriage Act, initially enacted in 1961, governs the legal requirements and procedures for monogamous marriages between opposite-sex couples in South Africa. It outlines the conditions for marriage, including age requirements, consent, and solemnisation. Monogamous marriages under this act require registration with the Department of Home Affairs for legal recognition.


2. Civil Union Act:

The Civil Union Act passed in 2006, was a significant milestone in South African legislation, providing legal recognition for same-sex marriages and civil partnerships. This act allows couples, regardless of sexual orientation, to enter into civil unions or partnerships, granting them similar legal rights and protections as heterosexual married couples.

Couples opting for a civil union can choose between a civil marriage or civil partnership, providing flexibility in their union while ensuring equal treatment under the law.


3. Recognition Of Customary Marriages Act:

The Recognition of Customary Marriages Act, enacted in 1998, recognises and regulates marriages conducted according to customary law and traditions practised by various ethnic groups in South Africa. This act aims to protect the rights of individuals in customary marriages, ensuring that they receive legal recognition and access to marital benefits and protections.

Each of these laws addresses different forms of marriage within South African society, reflecting the country’s diverse cultural, religious, and social landscape. However, the fragmented nature of these laws has led to inconsistencies and inequalities in the legal recognition of marriages. The new marriage law seeks to amalgamate these laws into a comprehensive piece of legislation, promoting equality and consistency in recognising all types of marriages.


The Benefits Of The New Marriage Law In South Africa

In its pursuit of equality and inclusivity, the new marriage law in South Africa brings forth many benefits that promise to reshape the country’s legal landscape. This groundbreaking legislation signifies a significant step towards a more equitable society by addressing longstanding disparities and embracing the diversity of intimate partnerships.

Let’s explore the key advantages of the proposed Marriage Bill, from protecting children’s rights to recognising all forms of unions under one comprehensive piece of legislation.


1. Protection Of Children’s Rights:

The new marriage law prohibits child marriages, setting the minimum legal age for getting married at 18 years. This crucial amendment aligns with international standards and safeguards the rights and futures of children.


2. Recognition Of All Types Of Marriages In One Piece Of Legislation:

By recognising all forms of marriages, including customary unions, under a single law, the new marriage law ensures equality and legal protection for all couples.


3. The Recognition Of All Forms Of Intimate Partnerships:

The proposed legislation acknowledges the diversity of intimate partnerships, promoting inclusivity and respect for individuals’ rights to choose their preferred form of union.


The Thorny Aspects Of The New Marriage Law In South Africa

While the new marriage law in South Africa brings about positive changes, particular concerns warrant closer examination. Let’s take a look at two critical issues.


1. Failure To Address Cohabitation And Unmarried Partnerships:

The proposed Marriage Bill’s oversight of cohabitation and unmarried partnerships is concerning as it excludes a significant population segment from legal recognition and protection. Cohabiting couples, whether heterosexual or same-sex, often face challenges in areas such as property rights, inheritance, and access to certain benefits.

Without legal recognition, these couples may encounter difficulties in asserting their rights and protecting their interests, particularly in the event of separation or the death of a partner. By disregarding the realities of cohabitation, the legislation misses an opportunity to provide clarity and safeguards for individuals in non-marital relationships, perpetuating uncertainty and potential injustices.


2. Exclusion Of Polyandry Marriages:

Another contentious issue with the proposed Marriage Bill is its exclusion of polyandry marriages, which allows a woman to have multiple husbands. While the legislation recognises polygamous marriages where a man can have multiple wives, it overlooks the possibility of polyandrous unions, thereby leaving room for the perpetuation of gender inequalities and the limitation of individuals’ autonomy in choosing their preferred form of union.

These thorny aspects of the new marriage law highlight the need for comprehensive and inclusive legislation recognising the diverse forms of relationships and partnerships within society. Addressing these concerns is crucial for promoting equality, protecting individual rights, and ensuring all citizens receive fair treatment under the law.

The proposed new marriage law in South Africa represents a significant step towards equality and recognition of diverse partnerships. While challenges remain, the prospective benefits far outweigh the drawbacks. As citizens, it is vital to stay informed and actively participate in shaping the future of our legal system.

At Burnett Attorneys & Notaries, our team of experienced family attorneys understands the complexities of family law and the significance of the proposed new marriage law in South Africa. If you have any questions regarding drafting antenuptial contracts, navigating the intricacies of the new legislation, or determining which union would best suit your partnership under the current legal framework, please don’t hesitate to contact us for a consultation. We’re here to provide guidance and support every step of the way.