My experience at the Marriage Bill hearing — Afrika Mhlophe

Last week, the Portfolio Committee on Home Affairs descended into Gqeberha for public hearings on the Marriage Bill [B43—2023]. The public participation process is a constitutional mandate, as determined by Section 59 of the Constitution, which compels Parliament to ensure public participation in its processes, including lawmaking.

According to Parliament’s website, the bill seeks to achieve four things:

• To rationalise the marriage laws pertaining to various types of marriages and introduce a single marriage statute to replace the three existing marriage laws governing civil marriages, customary marriages and civil unions.

• The bill further seeks to recognise all marriages irrespective of religion, custom, sexual orientation or other beliefs. All marriages, concluded following the tenants of any custom, religion or belief, will, therefore, be recognised. The Bill will further ensure that all marriages concluded before the commencement of the Bill continue to be recognised as marriages under South African law.

• Also, the bill seeks to prohibit marriages involving children, in line with South Africa’s obligations in terms of international human rights instruments and the protection of children. In this regard, the Bill introduces a requirement that both prospective spouses must be 18 years or older. The Bill further introduces offences and penalties for entering or concluding marriages with minors, as well as solemnising such marriages.

• The bill will further ensure that the Minister of Home Affairs is able to designate marriage officers from all of South Africa’s society and sets out the requirements to become a marriage officer.

Together with some Christian leaders, I attended the hearing, as did members of the LGBTQI community and traditional leaders. As you can imagine, everyone was concerned about aspects of the bill that directly affected them and their constituents. For instance, an LGBTQI delegate raised an issue with the fact that the section on polygamous marriage states that “a husband refers to a male person and excludes a male partner in a same-sex marriage”.

You would think that this should be self-evident owing to the fact that polygamy is a traditional and patriarchal union entered into between a biological man and two or more women. It is different from polyandry, which allows a woman to have multiple husbands simultaneously. Nevertheless, this delegate protested the fact that queer people are not allowed to be in a polygamous marriage.

Then there were Khoi and San leaders who decried the fact that they have to jump through many hoops in order to have their traditional marriages recognised by the state. They proposed that they be granted full marriage officer status to conduct and solemnise marriages. These same leaders, as with many delegates, called for the legal age for marriage to be moved from 18 years to 21.

On my side, I was encouraged by the fact that the bill makes provision for marriage officers to refuse to solemnise any marriage which is against his or her conscience, religion or belief. However, I objected to the fact this right does not apply to ex officio marriage officers. These are government employees such as magistrates and people working for the diplomatic and consular services. Such refusal to solemnise some marriages was a sticking point among the members of the LGBTQI community who were there. They felt that marriage officers should be compelled to solemnise any marriage, regardless whether it goes against their conscience, belief or religion.

Christian leaders present raised other issues of concern for Christians, including the difficulty they face in getting licensed to be marriage officers and the fact that it is far too easy in South Africa to dissolve marriage. Indeed, the bill has a whole section covering the dissolution of marriage. The positive aspect of it is the equal status it grants to all spouses in marriage in the case of divorce and the disposal of assets. As you might know, this issue sometimes becomes messy, with women often left holding the short end of the stick due to traditional and cultural laws that are skewed against them.

Nevertheless, most delegates were rather concerned with the rising tide of divorce and what the government should do to stem it. In other words, most people want marriage, as it is traditionally known, protected and promoted as the only viable institution for raising healthy families.

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