The New Marriage Bill ("the Bill") in South Africa is a landmark piece of legislation currently under parliamentary review, aimed at replacing the country's fragmented marriage laws with a single, inclusive framework. While the new consolidated marriage law has not been enacted, the 2023 Bill proposes various changes to marriage legislation in South Africa and introduces significant reforms, including the prohibition of child marriages, equal legal capacity for spouses, and recognition of diverse marital practices. It represents a progressive shift toward a more inclusive and coherent legal framework for marriage in South Africa.
The Bill is currently in the Public Participation phase and provincial hearings have been conducted in the North West, Free State and Northern Cape to grant communities the opportunity to engage directly with lawmakers and share their views on the proposed legislation. The Portfolio Committee on Home Affairs will continue consultations in the remaining provinces before finalising its recommendations.
The Bill seeks to consolidate South Africa's existing marriage legislation in the Marriage Act, Civil Union Act, and Recognition of Customary Marriages Act. It includes (Common Law/ Religious marriages that are not automatically legally recognized) into one comprehensive statute. This would simplify legal processes and reduce confusion around marital rights and recognition. The Bill promotes fairness and equality by ensuring that all spouses regardless of gender, sexual orientation, religion, or cultural background are treated equally under the law. It strengthens protections around property rights, inheritance, and decision-making within marriage.
This Bill will offer equal protection, in terms of heritance,
spousal maintenance and divorce, to spouses in Religious Marriages
and Same- Sex marriages that have been afforded to spouses in Civil
Marriages in terms of the Marriage Act.
The Bill, in Chapter 6, sets out how property and dissolution
matters will apply to different types of marriages, including
polygamous unions.
Polygamous marriages entered into before the Bill comes into
effect, and that were not registered under customary law, will
continue to be governed by the law that applied at the time of the
marriage. However, if any of the parties enter into additional
marriages after the Bill is enacted, all polygamous marriages
involving those parties will be governed by the New Marriage
Bill.
This approach ensures continuity for existing unions while
providing a clear legal framework for future polygamous
marriages.
All parties will now have to voluntarily choose a matrimonial
property system before solemnizing a marriage. If spouses choose to
marry out of community of property whether with or without accrual,
they must conclude a prescribed antenuptial contract before
registration. In terms of the Bill, and with the courts approval,
spouses will be able to change their matrimonial property system if
they have sound reasons, have informed all creditors and can show
that no one will be prejudiced by the change of matrimonial
property system.
Other changes are included in chapter 4 which stipulates the designation of marriage officers who can officiate marriages, such as officials from the Department of Home Affairs, religious leaders from recognised faith communities, traditional leaders and healers, where appropriate and Civil society representatives, subject to approval and training and in Chapter 5 which stipulates the solemnisation and registration of marriages.
The Bill creates additional grounds for divorce such as
emotional harm, coercion and financial abuse and encourages
mediation as per Rule 41A of Uniform Court Rules. The Bill
introduces penalties for forced marriages and child
marriages.
The implementation of the Bill will require parties in existing
marriages which were previously excluded, unregistered or
unrecognised in South Africa, such as religious marriages, same-sex
unions and customary marriages to be re-registered to ensure they
comply with the new legal framework, if they wish to ensure full
legal recognition and access to rights such as inheritance, spousal
maintenance, and protection in divorce or death.
Antenuptial contracts will undergo re-registration and, notably, will now apply to all forms of marriage not just civil unions. This marks a significant shift toward a more unified and equitable system. At its core, the Bill reflects South Africa's ongoing commitment to promoting equality, inclusivity, and the protection of human rights. Importantly, it introduces stronger safeguards for individuals in vulnerable positions, particularly women and children, reinforcing the state's role in upholding dignity and justice within the institution of marriage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
