Home Affairs looking at single marriage law in SA

The Minister of Home Affairs, Dr Aaron Motsoaledi, will host a dialogue on the development of a new single marriage law for all South Africans, regardless of sexual orientation or culture.

According to a statement from Home Affairs, the purpose of the dialogue is to engage with thought-leaders and gender and human rights activists “on how to mainstream equality, human dignity and non-discrimination principles in marriage legislation and practice”.

Friday’s dialogue in Johannesburg will be the first in a series of consultative engagements to be held with stakeholders in a quest to modernise the nation’s marriage policy, revealed Home Affairs spokesperson Thabo Mokgola.

“Engagements with stakeholders will help identify key issues to be addressed by the new marriage policy and legislation. Targeted stakeholders are those playing critical roles in the solemnisation, registration and dissolution of marriages,” said Mokgola.

Currently, marriages in South Africa are regulated through three pieces of legislation: Marriage Act 25 of 1961 (for monogamous marriage for opposite-sex couples); Recognition of Customary Marriages Act 120 of 1998 (polygamous marriages for opposite-sex couples) and Civil Unions Act 17 of 2006 (monogamous partnerships for both same and opposite-sex couples).

“The new marriage policy will inform the drafting of a single marriage act which will replace the existing acts,” explained the department. “A new single marriage act will enable South Africans of different sexual orientation, religious and cultural persuasions to conclude legal marriages that will accord with the constitutional principle of equality.”

Engagements with traditional leaders, religious leaders, academia, non-profits and government leaders are scheduled for the next two months. The inclusion of same-sex marriage under a single marriage law is likely to be vehemently opposed by conservative religious and traditional cultural groups.

Roché Kester, Hate Crime Manager at OUT LGBT Well-being, welcomed the department’s efforts to ensure that equal marriage is a reality in South Africa.

“It’s a good move towards being more inclusive. Civil unions are what the government did [in 2006] to comply with the Constitutional Court but essentially it is still something that remains separate but not wholly equal,” she said.

Kester warned, however, that the creation of a single marriage law may take years to become a reality. In the meantime, Home Affairs and lawmakers must ensure that same-sex couples receive equal and proper services, she said.

Currently, the Civil Union Act allows Home Affairs officials to opt-out of marrying same-sex couples on the basis of their personal beliefs – resulting in many cases of these couples being humiliated and denied marriage licenses.

In December 2018, the Civil Union Amendment Bill, which aims to remove this discriminatory provision, was passed by the National Assembly in Parliament but it has since stalled and has not moved on to the National Council of Provinces.

“Home Affairs officials cannot be allowed to decide who gets married or not. The Civil Union Amendment Bill must still become law to ensure that there is some kind of equality in the meantime,” said Kester.