Commissioner at the South African Law Reform Commission (SALRC) and Project Leader of the Single Marriage Statute, Professor Wesahl Domingo, provided a brief background to the Single Marriage Statute in a virtual workshop held by the SALRC.
By Kevin O’Reilly
The South African Law Reform Commission (SALRC) held a virtual workshop on 22 February 2021 to discuss the SALRC: Discussion Paper 152 on the Single Marriage Statute: Project 144.
Project Leader of the Single Marriage Statute and SALRC Commissioner, Professor Wesahl Domingo, gave a brief background to the Single Marriage Statute noting that in 2013 there was a request from the Minister of Home Affairs to investigate the adoption of a Single Marriage Statute. The reason for this was the amount of people who were not registering their marriages at the Department of Home Affairs. Furthermore, South Africa also has many different types of legislation regulating marriages and there was a request to try find a way to the adoption of a Single Marriage Statute. In 2017, the SALRC then approved the investigation and appointed the Advisory Committee.
Prof Domingo said approval for publication of the Discussion Paper was received in 2020. The SALRC proposed two identical Bills but with different names, namely –
Prof Domingo noted these Bills deal with the recognition and registration of marriages and do not deal with the matrimonial and patrimonial consequences of marriage.
Prof Domingo said the reason for the two name options was due to the perception that the Protected Relationships Bill aimed to abolish the concept of marriage. Prof Domingo said the Bill does not do this. The Bill only aims to recognise and register all kinds of relationships.
Prof Domingo pointed out that ‘protected relationships’ in terms of the Bill includes existing marriages or unions in terms of the Marriage Act 25 of 1961, the Civil Union Act 17 of 2006 and the Recognition of Customary Marriages Act 120 of 1998. It also includes existing polygynous marriages concluded in terms of religion or culture, and life partnerships. The Bill will also apply to all types of relationships regardless if they are registered or not.
Prof Domingo noted the Bill does not allow parties to ‘opt out’. This decision was made to ensure the protection of vulnerable parties in the relationship, she said.
Prof Domingo pointed out the consequences of marriage will continue to be regulated by other legislation such as the Maintenance Act 99 of 1998, Divorce Act 70 of 1979, Matrimonial Property Act 88 of 1984, and the Intestate Succession Act 81 of 1987. ‘What this Bill simply does is it allows for the recognition and registration of all protected relationships’ said Prof Domingo.
Prof Domingo highlighted the three core requirements for the recognition and registration of marriages or life partnerships, namely –
Prof Domingo noted a big change to the legislation was that no one can give permission to marry on behalf of a minor. This is to prevent forced or child marriages. Proxy and polygynous marriages are allowed as long as consent or permission from the parties is obtained. Prof Domingo explained that there are two registration scenarios, namely, one with and one without the involvement of a marriage officer. Where no marriage officer is involved, then the parties are responsible for the registration of the marriage. She further noted that traditional authorities may facilitate the registration process of members in their communities. Prof Domingo said it was important to understand that failure to register the marriage would not invalidate the marriage. She said the Advisory Committee had come to this decision to avoid placing women and children in a vulnerable position after the death of the husband. The Bill will also retain marriage officers, she said.
Prof Domingo said the Bill fundamentally seeks to protect all types of relationships regardless of religion or culture.
The closing date for comments was set for 31 March 2021. However, Principal State Law Advisor at the SALRC said a media statement will be issued in March regarding an extension for comments. He said workshops will also continue until May.
The Chairperson of the Advisory Committee, Professor Christa Rautenbach, in closing thanked everyone for their contribution to the workshop and noted the importance of hearing a diverse range of concerns and views on the Bill before compiling the final report. She invited all those interested to submit written comments.
Commissioner at the South African Law Reform Commission (SALRC) and Project Leader of the Single Marriage Statute, Professor Wesahl Domingo, provided a brief background to the Single Marriage Statute in a virtual workshop held by the SALRC.
Kevin O’Reilly MA (NMU) is a sub-editor at De Rebus.
