What is the new marriage act in South Africa? Everything to know about the new nuptial bill and it’s implications for citizens and foreigners.
On November 30, 2006, South Africa became the first African country to legalize same-sex marriage, with a constitution that also protects against discrimination based on sexual orientation. A bill was also introduced in 2018 to criminalize hate crimes and hate speech, and in 2020, South Africa’s President Cyril Ramaphosa passed into law the Civil Union Amendment Act, which prohibits marriage officers from refusing to conduct same-sex marriages.
A few years later (in 2022), the Minister of Home Affairs, Aaron Motsoaledi, intended to introduce the all-new Marriage Bill 2023 in the National Assembly.
The intention of the South African Legislature is to change its marriage law to recognize all forms of intimate partnerships, irrespective of gender, sexual orientation, or religious, cultural, and other beliefs.
Currently, it is drafted and awaiting implementation, although a lot of citizens have shared mixed reactions to it. Keep reading for more details on the new marriage law in South Africa and know its implications.
What is marriage like in South Africa?
Due to the diversity of the nation’s cultures and religions, many different types of marriage are practiced in South Africa.
Women are only allowed to have one spouse, whereas men are allowed to have multiple spouses. All polygamous marriages entered into in accordance with the provisions of the Recognition of Customary Marriages Act are legal. The husband in an existing customary marriage wishing to marry a second wife must apply to a competent court for such a marriage to be legal.
Marriage as a foreigner in South Africa comes with a lot of benefits. In our previous article, we discussed that aside from being able to have a residency, it comes along with easy spousal visa acquisition.
What are the types of marriages in South Africa? South African law recognises three types of marriage: civil unions, civil marriage, and customary weddings.
1. Civil marriage
This kind of union is solemnised at churches and any Department of Home Affairs office. The Marriage Act governs it, and the regulations are also issued based on the terms of the Act.
If a civil marriage occurs, it must be witnessed by at least two witnesses who will also attest to the issuance of the marriage certificate. This can occur in any of the following places:
- Either a church building or any other building where religious services take place.
- A private house or public office, as long as the doors are opened.
- If either of the intending spouses is seriously ill or has injuries, the solemnisation can occur in a hospital or the concerned facility.
There are three types of civil marriages in South Africa. They include civil marriage in community of property, marriage out of community of property, and marriage out of community of property with accrual.
2. Customary marriage
Customary marriage in South Africa is negotiated, celebrated, or concluded according to any of the systems of indigenous African customary law in South Africa.
A customary marriage’s marital regime, like a civil marriage’s, can be in or out of a community of property.
Three conditions must be met for a customary marriage to be legally valid.
- Both parties must be over the age of 18.
- They must both agree to be married under customary law.
- Their marriage must be celebrated following their community’s customary law.
3. Civil union marriage
Civil unions, or civil partnerships, were introduced in South Africa in 2006 by the Civil Union Act, which also legalised same-sex marriage. While civil unions are commonly associated with same-sex couples, they can also be formed by opposite-sex couples. Civil union marriages have the same rights, responsibilities, and legal consequences as civil marriages.
What is the new marriage law in South Africa?
In 2022, South African lawmakers intended to implement a new law known as the Draft Marriage Bill 2022, as confirmed by the official government website.
According to the Centre for the Study of Violence and Reconciliation, an independent non-governmental organisation established in South Africa in 1989, the intention of the South African Legislature is to change its marriage law to recognize all forms of intimate partnerships, irrespective of gender, sexual orientation, or religious, cultural, and other beliefs.
This was spearheaded by the Minister of Home Affairs in the National Assembly, Aaron Motsoaledi.
As per the rules of the National Assembly, an explanatory summary of the bill has also been published, per a publication by Businesstech South Africa.
The bill seeks to do the following:
- Rationalise the marriage laws pertaining to various types of marriages;
- Provide for the recognition of marriages;
- Provide for the requirements for monogamous and polygamous marriages;
- Provide for the designation of marriage officers;
- Provide for the solemnisation of marriages;
- Provide for matters incidental thereto.
Following approval from Cabinet, the Department of Home Affairs published the Draft Marriage Bill of 2022 for public comment in July 2023.
The revised Marriage Bill 2023 is yet to be published, and despite some likely similarities, it may have some amendments from the Draft Marriage Bill of 2022 following the consultation process.
The Draft Bill gave effect to the White Paper on Marriages in South Africa, which was approved by the Cabinet in March 2022.
“The Bill empowers the Department of Home Affairs to develop a single Marriage Act for the country,” the Minister in the Presidency, Khumbudzo Ntshavheni, previously said.
“The Bill seeks to ensure that all marriages are concluded in accordance with the principles of equality, non-discrimination, and human dignity as provided for in the Constitution of the Republic of South Africa of 1996.”
Currently, marriages in South Africa are regulated through three separate pieces of legislation:
- The Marriage Act – for the monogamous marriage of opposite-sex couples.
- The Recognition of Customary Marriages – for polygamous marriages of opposite-sex couples.
- The Civil Union Act – for monogamous partnerships for same-sex and opposite-sex couples.
In essence, the new Bill will bring all marriage legislation under one roof and address any weaknesses in the current legislation.
The Bill will still need to go through several regulatory steps before becoming law and will need approval from the National Assembly, the National Council of Provinces, and the President.
Even though the bill promotes important constitutional values, it does not sufficiently reflect changing social and economic conditions. Specifically, it ignores polyandry—the marriage of a woman to more than one man—and unmarried partnerships.
Per News24, the bill creates ambiguity because it does not stipulate the fate of a subsequent customary or religious marriage.
10 implications the new marriage law will have on South Africans
1. It is right to know that the Draft Marriage Bill seeks to consolidate all laws relating to marriage in the country into one piece of legislation to reduce uncertainty.
2. The new Marriage Act will allow South Africans of all sexual orientations, religious beliefs, and cultural backgrounds to enter legally binding marriages.
3. The bill aims to eradicate child and forced arranged marriages in line with international standards by criminalising marriages to persons under eighteen. Previously, children over the age of sixteen were able to enter into marriages with consent from their guardians and upon application to a registered marriage officer. This change is in line with the constitutional principle that the interests of the child are paramount and must be prioritised over any religious or cultural considerations.
4. Secondly, polygamous marriages are recognised in the Draft Bill, but the requirements for a valid polygamous marriage are prescribed. This prescription promotes ideologies of patriarchy that allow men to have multiple partners while limiting women to one partner. It is also ignorant and takes away from the objective of recognising the diverse genders within society. In attempting to mainstream gender equality, the state and all stakeholders should move away from assuming the mention of gender disparities and diversities as an act that is enough to advance women’s peace and security agenda.
5. Finally, all spouses will be considered equal under the new legal framework, whereas the capacity to acquire and dispose of assets, or enter into contracts and litigate, is currently limited in certain circumstances.
6. It will harmonise the laws governing marriage, marital property, and divorce to address issues related to marital property and intestate succession in the event of a divorce.
7. In keeping with Section 15 of the Constitution, it will permit fair treatment and respect for religious and customary beliefs.
8. It will cover the registration and solemnization of marriages involving foreign nationals.
9. The bill creates uncertainties about Muslim marriages regarding undue discrimination against Islamic women. There was no reference to their rights within a marriage, including issues with regards to the registration process for existing Muslim marriages, noting that the Act will not apply retrospectively to existing marriages.
10. The bill is also silent on the coexistence of civil law marriages with customary or religious marriages, which is commonplace in South Africa. The uncertainty here is that the bill does not stipulate the fate of subsequent customary or religious marriages, which could affect inheritance or child custody because the legal systems may govern these issues differently. For more on the new marriage law, click here.
For a PDF of the new marriage bill in South Africa, click here
Details on the types of marriage contracts in South Africa
There are two main types of nuptial contracts in South Africa, per a publication by Western Carpe. They include:
- Marriage in community of property and
- Marriage out of community of property (also known as an antenuptial agreement).
However, other outlets add two additional types: customary marriage contracts and marriage in community of profit and loss.
1. Marriage in Community of Property
The in-community property contract involves sharing all assets and liabilities equally between spouses. While this simplifies financial arrangements, it also means joint ownership of both assets and debts. This contract is suitable for those desiring a straightforward approach to financial unity within the marriage.
2. Antenuptial contract agreement
The antenuptial contract agreement is also known as marriage out of community of property. When this type of wedding contract holds, it means that either or both parties do not want their assets to be shared equally in the event of divorce or death.
If this is going to happen, both parties must have drawn and signed an antenuptial contract (ANC). When conducting this type of marriage contract, there are two options from which couples can choose: an antenuptial contract with or without accrual.
- Antenuptial Contract with Accrual: The Antenuptial Contract with Accrual is a popular choice among South African couples. It allows spouses to maintain financial independence during the marriage while sharing accumulated assets and liabilities. In the event of divorce or death, the accrued assets are divided equally, providing a fair distribution for both parties. This contract is suitable for those seeking a balance between financial autonomy and shared prosperity.
- Antenuptial Contract without Accrual: Alternatively, couples may opt for the Antenuptial Contract without Accrual, where complete separation of assets is maintained throughout the marriage. Each spouse retains individual financial autonomy, and there is no sharing of accumulated wealth. This contract is chosen by individuals who prioritize maintaining distinct financial identities within the marriage.
3. Customary Marriage Contracts
South Africa recognizes customary marriages governed by traditional customs. While these marriages inherently have legal standing, couples may choose to formalize their agreements through marriage contracts. Customary marriage contracts align traditional practices with legal clarity, ensuring a harmonious integration of cultural and legal frameworks.
4. Marriage in Community of Profit and Loss
A less common but legally valid option is marriage in community of profit and loss. This contract combines elements of both the antenuptial contract with accrual and the in community of property, allowing spouses to share profits while maintaining separate estates for losses. It provides a nuanced approach to financial arrangements within the marriage.
