Ekurhuleni residents have called for the Marriage Bill to include provisions to protect individuals who are cohabiting with their partners.
A delegation of the portfolio committee on home affairs has started public hearings in Gauteng on the bill, and the group in Ekurhuleni held its engagement at the Vosloorus Civic Centre Community Hall on Tuesday.
The bill seeks to rationalise marriage laws pertaining to different types of marriages and introduce a single marriage statute to replace the three existing marriage laws governing civil marriages, customary marriages and civil unions.
It further seeks to recognise all marriages irrespective of religion, custom, sexual orientation or other beliefs. All marriages, concluded after the tenants of any custom, religion or belief, will, therefore, be recognised. The bill will further ensure all marriages concluded before the commencement of the bill continue to be recognised as marriages under South African law.
It also seeks to prohibit marriages involving children in line with South Africa’s obligations in terms of international human rights instruments, as well as the protection of children. In this regard, the bill introduces a requirement that both prospective spouses must be 18 years or older. It further introduces offences and penalties for entering or concluding marriages with minors, as well as solemnising such marriages.
Participants argued that due to undue discrimination against Muslim married women, the bill must include clear provisions and addendums addressing different marriages.
— Chairperson of the portfolio committee on home affairs Mosa Chabane
The committee is subjecting the bill to public consultation, and this week the committee split into two delegations to hold public hearings in Gauteng.
Chairperson of the portfolio committee on home affairs Mosa Chabane said some participants acknowledged that while they did not want to undermine the value of marriage, their reality is that many people live together while unmarried.
“They argued that due to a lack of legal protection of the living arrangement, many women and children are put at risk when the arrangement is dissolved, either by separation or death. They argued strongly that the committee considers including provisions that will protect property and other rights of partners in the living arrangement,” he said.
Chabane said the bill received mixed reviews, with some supporting it and others rejecting it, but the general view was that it is a necessary intervention to achieve the provisions of the Bill of Rights, which prevents the state from unfairly discriminating against anyone on the basis of race, gender, sex, religion and cultural beliefs.
He said those in support highlighted it would ensure equality and provide for the recognition of all marriages.
“Supporters welcomed the expansion of categories of marriage officers and argued this reaffirms the constitutional provision of non-discrimination and recognition of diverse societies,” said Chabane.
He said supporters argued the provisions setting the legal age requirement at 18 are necessary to bring it in line with international standards and the Children’s Act.
They argued the provision is necessary to protect children and prevent their exploitation.
Chabane said supporters argued the penalties proposed in section 17 are inadequate and could be undermined by the wealthy.
“They argued rather for harsher penalties, including imprisonment, for anyone who marries a child under 18 years of age,” he said.
Chabane said those against it argued that the bill does not provide for all marriages, especially Muslim marriages.
“They said the bill does not go far enough to address legal shortcomings in recognition of Muslim marriages. Participants argued that due to undue discrimination against Muslim married women, the bill must include clear provisions and addendums addressing different marriages. They said the lack of explicit reference to such marriages in the draft bill may lead to the further lack of legal certainty regarding their rights within a marriage,” he said.
Chabane said some participants called for clear regulations to outline some of the inadequacies within the bill and a standard of what should be included in the written consent form before the conclusion of a polygamous marriage.
Several religious leaders, cultural activists and members of the public from Tshwane metropolitan municipality and surrounding areas have reservations about the bill.
The leader of the delegation of the portfolio committee on home affairs, Moleboheng Modise-Mpya, said during the public hearings in Tshwane, most speakers held strong religious and cultural views and argued against some provisions in the bill, such as same-sex marriage and polyandry.
She said the religious leaders and advocates of culture and tradition told the committee the bill in its current form would undermine culture and tradition, which do not recognise the concept of polyandry and marriage between people of the same gender.
She said other critics of the draft legislation told the committee the bill is too liberal, and proposed that a law must have limits instead of allowing and legalising every societal trend.
“There were also those who felt there was no need for a single legislation to govern all types of marriages as this could undermine some cultural and religious rights. The religious leaders felt very strongly about proposed plans in the bill to prevent department of home affairs officials from refusing to conduct marriages that go against their personal beliefs. This was seen as a violation of religious rights. A proposal was made for an exemption to ensure people are not penalised for their beliefs,” she said.
Modise-Mpya said the bill was also criticised for its silence on the practice of ukuthwala, an ancient form of arranged marriage that involved the abduction of a woman to be taken to the home of the would-be husband without the agreement of the parents.
Citizens who spoke about the subject said ukuthwala should be outlawed as it involved the kidnapping of underage girls to be forced into marriage with older men.
Modise-Mpya said the committee also heard the bill must provide for mechanisms to deal with fake or fraudulent marriages between South African women and foreign males, which they said was done for citizenship and the women are paid for this.
Another suggestion that came up strongly during the public hearings in Tshwane was for the legal age of marriage consent to be changed from 18 to 21 or 25, arguing that most 18-year-olds are at school.
Modise-Mpya dismissed suggestions that parliament will continue with the legislation irrespective of the feelings of citizens and submissions against the bill.
She said: “This is not a lip service or tick-box exercise. We will not decide for you. You are the custodians of the laws and we are facilitators of the process. All your views and comments are important for the committee and will be treated equally during consideration of the final amendments.”
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