Minister of Home Affairs Aaron Motsoaledi has published the Green Paper on Marriages in South Africa for public comment.
In explaining the purpose of new policies on marriage, the Green Paper says existing marriage legislation in South Africa is not informed by an overarching policy based on the country’s Constitution. Instead, it is a combination of legacy legislation (colonial and apartheid era) and new law introduced post-1994 to redress historical injustices.
“Instead of creating a harmonised system of marriage in SA, the State has sought to give recognition to different marriage rituals by passing a range of different marriage laws,” the Green Paper states.
Marriages in South Africa are regulated through:
- The Marriage Act 25 of 1961 (monogamous marriage for opposite sex couples);
- The Recognition of Customary Marriages Act 120 of 1998 (polygamous marriages for opposite sex couples who are black South Africans);
- The Civil Union Act 17 of 2006 (monogamous partnerships for both same and opposite sex couples).
Historically, monogamous marriages of heterosexual black persons were governed by the partly repealed Black Administration Act 38 of 1927. The democratic dispensation also inherited the marriage systems of the former homelands states such as Transkei, Venda, Bophuthatswana and Ciskei (TBVC states) and Gazankulu, KaNgwane, KwaNdebele, KwaZulu, Lebowa and Qwaqwa.
“Despite the efforts of the State to redress the injustices of the past, the current marriage statute still deprives certain cultural and religious communities from concluding legally recognised marriages.
“This includes Islamic and Hindu marriages, customary marriages concluded in some African communities and marriages of transgender persons,” the Green Paper states.
“The purpose of the marriage policy is to establish a policy foundation for regulating the marriages of all persons that reside in SA. The envisaged marriage statute 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.”
The process of drafting the Green Paper began in the 2019/2020 financial year, when the Department of Home Affairs hosted country-wide ministerial dialogues with various interest groups.
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COMMENT
Individuals and organisations are invited to comment on the Green Paper by 30 June 2021.
Post: The Director -General: Department of Home Affairs, Private Bag x114, Pretoria, 0001
For attention: Mr Sihle Mthiyane, Chief Director. Policy and Strategic Management
Email: marriagegreenpaper@dha.gov.za
Call: 012 406 4352
