Last updated on Jun 10th, 2021 at 05:23 pm

(By Natasha Truyens, Family Law Attorney, for Barnard Inc. Attorneys)

Imagine a society where its marriage laws recognise and celebrate diverse cultural and religious traditions, acknowledge the special circumstances of loved ones, and protect the rights of women and children…

The dream could soon be reality following a recent Constitutional Court ruling, according to Natasha Truyens, Family Law Attorney, for Barnard Inc. Attorneys.

“While the ruling only dealt with section (7)1 of the Recognition of Customary Marriages Act, it has set off a chain of events aimed at correcting the many injustices of the current marriage laws,” says Truyens.

Section (7)1 essentially says that wives who have entered into customary marriages before the Act was passed have no marital property rights. The ConCourt said that this is inconsistent with the Constitution, and therefore invalid.

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Consequently, the South African Law Reform Commission and the Department of Home Affairs, have both been reviewing the South African marriage regime; and the proposed new Recognition of Customary Marriages Amendment Bill aims to address the demands of the Court and to better reflect the changes in modern society.

Recognising religious and traditional marriages

Developing legislation that recognises both religious and traditional marriages (such as Hindu and Muslim), while affording sufficient protection to marginalised people in society – including women in minority religious communities, is proving challenging for lawmakers.

According to the Women’s Legal Centre, “the inaccessibility to the courts means that those married as per Muslim law (Shari’ah law) must obtain divorces under Shari’ah law instead of through the court system. As a result, Muslim women have often found it exceptionally hard to obtain divorces. In addition, Shari’ah law often favours the male spouse in divorce proceedings. Therefore, Muslim women are vulnerable to being economically disadvantaged in the event of divorce.”

“Similarly, because the Marriage Act does not recognise polygynous marriages, in cases of death or divorce, it can be difficult for the female surviving spouses to access justice and a fair share of the marital assets. This unequal treatment under the law violates Muslim women’s access to their constitutional rights.”

New marriage policy in development

The Department of Home Affairs is proposing the development of a marriage policy to lay the foundation for the drafting of new ‘single’ or ‘omnibus’ legislation that will include all marriage types in South Africa, given our vast diversity.

The devil is in the details, however.

The major changes proposed include:

  • Marriage, matrimonial property, and divorce legislation will be aligned to address matrimonial property and intestate succession in the event of a marriage dissolving either by divorce or death
  • Equitable treatment and respect for religious and customary beliefs
  • Recognition and registration of marriages that involve foreign nationals
  • Recognition and registration of customary marriages that involve non-citizens (especially cross border communities)
  • South Africans of different sexual orientation, religious and cultural persuasions will be allowed to conclude legal marriages
  • Introduction of strict rules regarding age of marriage to align with provisions of the Children’s Act

Once the policy is finalised, it will be Gazetted for public consultation and then submitted to cabinet for approval by 31 March 2021.