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Regulation Gazette No. 10177 Regulasiekoerant
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2 No. 44529 GOVERNMENT GAZETTE, 4 May 2021
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Contents
Gazette Page
No. No. No.
Government Notices • Goewermentskennisgewings
Home Affairs, Department of / Binnelandse Sake, Departement van

398 Constitution of the Republic of South Africa (108/1996): Green Paper on Marriages in South Africa....................... 44529 3
This gazette is also available free online at www.gpwonline.co.za

STAATSKOERANT, 4 Mei 2021 No. 44529 3
Government Notices • Goewermentskennisgewings
DEPARTMENT OF HOME AFFAIRS
NO. 398 4 May 2021
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Private Bag X741, Pretoria, 0001, Tel: (012)432 8835 Fax: (012) 432 6678
Private Bag X9102, Cape Town, 8000, Tel: (021) 469 6507, Fait (021) 461 4191
GREEN PF rlE.'a ICRGA ii EOLITH :TWA

I, Dr Pakishe Aaron Motsoaledl, Minister of Home Affairs, intend in terms of section
85 of the Constitution of the Republic of South Africa (Act No. 108 of 1996) to publish
the Green Paper on Marriages in South Africa for public comments.
Interested persons and organisations are invited to submit any substantive

comments or representation by no later than 30 June 2021. Written submissions can
be forwarded to the following address:
The Director -General: Department of Home Affairs, Private Bag x114, Pretoria, 0001
For attention: Mr Sihie Mthiyane, Chief Director. Policy and Strategic Management
Email: sei. nOV.Á :
Tel: 012 406 4352
DR,`l`'A !JOTS() = LEDI, MP

MINISTER F ME AFFAI:.S
DATE: ;
ti `V)

GREEN PAPER1 ON MARRIAGES IN

SOUTH AFRICA
PUBLIC CONSULTATION VERSION
20 APRIL 2021
1
A Green Paper is a government policy discussion paper that details specific issues, and then
points out possible courses of action in terms of policy and legislation. It articulates possible
solutions that are yet to be adopted by government. The Green Paper is a precursor for a White
Paper. The White Paper articulates a policy position of government that has been approved by
Cabinet.

CONTENTS
PREFACE ................................................................................................................... 5
SECTION 1: POLICY OVERVIEW .............................................................................. 9
Chapter 1: Marriage policy context .......................................................................... 9
1. Overview of the Home Affairs mandate ......................................................... 9
2. Purpose of the marriage policy (Green Paper) .............................................. 9
3. Problem statement ....................................................................................... 10
4. Scope of the marriage policy (Green Paper) ............................................... 11
5. Overview of the policy chapters ................................................................... 12
6. Research methodology ................................................................................ 13
Chapter 2: Understanding marriage in the South African context.......................... 15
1. Introduction .................................................................................................. 15
2. Constitutional provisions for the marriage policy ......................................... 15
3. Perspectives on family and marriage ........................................................... 18
4. Concluding observations .............................................................................. 25
Chapter 3: Overview of the marriage legal framework and analysis...................... 27
1. Introduction .................................................................................................. 27
2. Overview of marriage legislation .................................................................. 27
SECTION 2: STATISTICS ON MARRIAGES AND DIVORCES ............................... 35
Chapter 4: Statistics on marriage........................................................................... 35
1. Introduction .................................................................................................. 35
2. Civil marriages ............................................................................................. 35
3. Customary marriages ................................................................................... 38
4. Civil unions ................................................................................................... 39
5. Conclusion ................................................................................................... 40
GREEN PAPER ON MARRIAGES: PUBLIC CONSULTATION VERSION – APRIL 2021

Chapter 5: Statistics on divorce ............................................................................. 41
1. Trends in divorce (2008 – 2017) .................................................................. 41
2. Conclusion ................................................................................................... 44
SECTION 3: POLICY FRAMEWORK AND IMPLEMENTATION STRATEGY ......... 45
Chapter 6: Policy analysis and options .................................................................. 45
1. Introduction .................................................................................................. 45
2. Vision statement .......................................................................................... 45
3. Foundational policy principles ...................................................................... 47
4. Policy options and remedies ........................................................................ 47
Chapter 7: High-level implementation strategy ...................................................... 58
1. Introduction .................................................................................................. 58
2. Principles of co-operative government and intergovernmental relations ..... 58
3. Public administration principles .................................................................... 60
4. High-level implementation plan .................................................................... 61
ANNEXURE 1: INTERSECTIONALITY OF FAMILY LAW ........................................ 62
Marriage regimes in South Africa........................................................................... 62
1. Introduction .................................................................................................. 62
2. Marriage in community of property .............................................................. 62
3. Marriage out of community of property ........................................................ 63
4. Marriage out of community of property with accrual .................................... 64
Legal consequences of marriage ........................................................................... 66
1. Introduction .................................................................................................. 66
2. Intestate Succession Act 81 of 1987 ............................................................ 66
3. Wills Act 7 of 1953 ....................................................................................... 67
4. Maintenance of Surviving Spouses Act 27 of 1990 ..................................... 68
5. Divorce Act 70 of 1979 ................................................................................. 69

6. Matrimonial Affairs Act 37 of 1953 ............................................................... 71
ANNEXURE 2: EMERGING LEGISLATIVE LITERATURE ...................................... 72
Case law from the courts ....................................................................................... 72

PREFACE
The Constitution requires the Department of Home Affairs (DHA), as an institution of

the State, to establish a State capacity that provides marriage services (solemnisation
and registration) impartially, fairly, equitably and without bias. Such services must be
provided to all people who live in South Africa in line with the following Constitutional
provisions:
• Section 9(1) of the Constitution provides that everyone is equal before the law
and has the right to equal protection and benefit of the law.
• Section 9(3) of the Constitution provides that the State may not unfairly
discriminate directly or indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth.
• Section 9(4) of the Constitution provides that no person may unfairly
discriminate directly or indirectly against anyone on one or more grounds in
terms of subsection (3). National legislation must be enacted to prevent or
prohibit unfair discrimination.
• Section 9(5) of the Constitution provides that discrimination on one or more of
the grounds listed in subsection (3) is unfair unless it is established that the
discrimination is fair.
• Section 10 of the Constitution provides that everyone has inherent dignity and
the right to have their dignity respected and protected.
• Section 15(1) of the Constitution provides that everyone has the right to
freedom of conscience, religion, thought, belief and opinion.
• Section 31(1) of the Constitution provides that persons belonging to a cultural,
religious or linguistic community may not be denied the right, with other
members of that community – (a) to enjoy their culture, practise their religion
and use their language; and – (b) to form, join and maintain cultural, religious
and linguistic associations and other organs of civil society.
• However, Section 31(2) of the Constitution states that the rights in subsection
31(1) may not be exercised in a manner inconsistent with any provision of the
Bill of Rights.

The marriage legislation that regulates marriages in South Africa is not informed by an
overarching policy based on the above constitutional provisions. The legislation is a
combination of legacy legislation (colonial and apartheid era) and new law that was
introduced post-1994 to redress historical injustices. Instead of creating a harmonised
system of marriage in SA, the State has sought to give recognition to different marriage
rituals by passing a range of different marriage laws. Marriages in SA are regulated
through the following legislation:
• The Marriage Act 25 of 1961 (monogamous marriage for opposite sex couples)
• The Recognition of Customary Marriages Act 120 of 1998 (polygamous
marriages for opposite sex couples who are black South Africans)
• The Civil Union Act 17 of 2006 (monogamous partnerships for both same and
opposite sex couples).
Historically, monogamous marriages of heterosexual black persons were governed by

the partly repealed Black Administration Act 38 of 1927. The democratic dispensation
also inherited the marriage systems of the former homelands states such as Transkei,
Venda, Bophuthatswana and Ciskei (TBVC states) and Gazankulu, KaNgwane,
KwaNdebele, KwaZulu, Lebowa and Qwaqwa.
Despite the efforts of the State to redress the injustices of the past, the current
marriage statute still deprives certain cultural and religious communities from
concluding legally recognised marriages. This includes Islamic and Hindu marriages,
customary marriages concluded in some African communities and marriages of
transgender persons.
The purpose of the marriage policy is to establish a policy foundation for regulating the
marriages of all persons that reside in SA. The envisaged marriage statute will enable
South Africans and residents of all sexual orientations, religious and cultural
persuasions to conclude legal marriages that will accord with the principles of equality,
non-discrimination, human dignity and unity in diversity, as encapsulated in the
Constitution.
The Green Paper on Marriages (Green Paper) is a product of extensive research and
consultation. The process of drafting the Green Paper began in the 2019/2020

financial year, when the DHA hosted country-wide ministerial dialogues with various
interest groups with the purpose of stimulating discussions and soliciting inputs on the
key issues that should be addressed by the marriage policy. Stakeholders that were
consulted include the following:
• Religious leaders (Muslims, Hindus, Christians, Rastafarians, etc.)

• Chapter 9 institutions such as the South African Human Rights Commission
and Commission for Gender Equality
• Human rights and gender activists, including the LGBTQIA+ activists
• Traditional leaders (Contralesa and houses of traditional leaders)
• KhoiSan community leaders
• South African Law Reform Commission
• Academics and family law practitioners
The Green Paper is being gazetted to invite substantive comments from the public.
The DHA anticipates receiving competing submissions, as it was the case during the
ministerial dialogues. While all submissions will be considered, views that infringe the
rights of others will not be incorporated into the White Paper on Marriages. The DHA
is obliged to craft a marriage policy that respects, protects, promotes and fulfils the
rights incorporated in the Bill of Rights. This task ought to be undertaken with the
understanding that the Constitution does not accord hierarchical precedence to any
particular right over any other rights entrenched in the Bill of Rights.
This is the beginning of a crucial public discourse that will re-define the concept of
marriage in SA. The process will unearth issues that may make some of us
uncomfortable, but will encourage dialogue within the South African and international
communities. The roadmap to implementing the marriage policy will entail the following
steps:
• Gazetting the draft marriage policy for public comments by 30 April 2021
• Submitting the marriage policy to Cabinet for approval by 31 March 2022
• Submitting the Marriage Bill to Cabinet for approval by 31 March 2023
• Submitting the Marriage Bill to Parliament for approval by 31 March 2024.

LIST OF ABBREVIATIONS
CC Constitutional Court
DHA Department of Home Affairs
LGBTQIA+ Lesbian, gay, bisexual, transgender, queer, intersex and asexual plus all
other groups that fall under those umbrellas
NPR National population register
SCA Supreme Court of Appeal
StatsSA Statistics South Africa
TBVC Transkei, Bophuthatswana, Venda, Ciskei
WCC Western Cape Division, Cape Town

SECTION 1: POLICY OVERVIEW
Chapter 1: Marriage policy context
1. Overview of the Home Affairs mandate
The policy framework and laws that enable the State to establish the legal status of
every individual in South Africa is the foundation of our sovereignty and the legitimate
exercise of State power. Affirming the identity and status of every person that lives in
South Africa is indispensable for the State, which must respect, protect, promote and
fulfil constitutional and international obligations and commitments.2 The Department
of Home Affairs (DHA) is central to developing an inclusive population register as well
as the civil registration3 system that serves the Constitution and the needs of all people
who live in South Africa.
To realise the above constitutional and international obligations, the DHA was
established to fulfil the following exclusive mandate:
• Manage civil registration and citizenship

• Manage international migration
• Manage refugee protection.
2. Purpose of the marriage policy (Green Paper)
The purpose of the marriage policy (as articulated in the Green Paper) is to establish
a policy foundation for regulating the marriages of all persons that reside in South
Africa, including citizens, international migrants, asylum seekers and refugees. The
marriage policy will therefore cover issues that straddle the three mandates of the
2
White Paper on Home Affairs p9.
2
The Constitution of the Republic of South Africa Section 1.
3
Civil registration is a process whereby major vital events (birth, marriage and death) occurring in
a population are officially recorded. It is defined by the United Nations as ‘the continuous,
permanent, compulsory and universal recording of the occurrence and characteristics of vital
events in a population’, in accordance with the legal requirements of the country.

10
DHA. The envisaged marriage statute will enable South Africans and residents of all
sexual orientations, religions and cultural persuasions to conclude legal marriages that
will accord with the principles of equality, non-discrimination, human dignity and unity
in diversity, as encapsulated in the Constitution.
3. Problem statement
In 1994, South Africa inherited a marriage regime that was based on the Calvinist
Christian and Western traditions, which stemmed from the era where the State and
church were mutually reinforcing if not synonymous. Accordingly, there were strong
references in some of the laws governing marriage that harken to the religious
marriage rituals practiced in Christian and Western marriages (“white wedding”). In the
new era of democracy, the values of equality and diversity underpin our quest for
nationhood, and all religious and cultural practices are given equal recognition and
status in line with Section 15(1) of the Constitution.
Instead of creating a harmonised system of marriage in South Africa, the State sought
to give recognition to different marriage rituals by passing a range of different marriage
laws. As a result, there are now parallel structures and processes that stand side by
side. Marriages in South Africa are regulated through the following legislation:
• The Marriage Act 25 of 1961 and its associated regulations

• The Recognition of Customary Marriages Act 120 of 1998 and its associated
regulations
• The Civil Union Act 17 of 2006 and it associated regulations.
The problem statement is further elaborated below:
• The legislation that regulates marriages in South Africa is not informed by an

overarching policy that is based on constitutional values and the understanding
of modern society dynamics.
• The current legislation does not regulate some religious marriages such as the
Hindu, Muslim and other customary marriages that are practiced in some
African or royal families and KhoiSan communities.

11
• The existing legislation makes provision for the marriage of minors, provided
that the legally required consent has been granted and submitted to the
marriage officer in writing.
• Discrimination against same-sex couples is legislated through the legal
provision that allows marriage officers to refuse to solemnise civil unions on the
grounds of religious beliefs. This discrimination is seen as unfair given that this
responsibility is limited to State officials and religious leaders. Other social
groups, including traditional leaders and gender non-conformists, are not
allowed to solemnise marriages.
• The legislation does not make provision for couples who change their sex
status while married under the Marriage Act and want to retain their marital
status without going through a divorce, as required by the current law.
• The Recognition of Customary Marriages Act does not make provision for a
polygamous marriage with non-citizens. This poses a serious challenge for
such marriages, particularly among community members from the same clan
that are separated by a borderline.
• According to African tradition and practice, traditional leaders have a
recognised role in the conclusion of a customary marriage; however, the
legislation does not extend a similar responsibility to traditional leaders.
Given the diversity of the South African population, it is virtually impossible to pass
legislation governing every single religious or cultural marriage practice. Against this
background, the DHA is embarking on the process of developing a marriage policy as
a foundation for drafting a new marriage legislation. The new Marriage Act will enable
South Africans of different religious and cultural persuasions to conclude legal
marriages that will accord with the doctrine of equality, non-discrimination and human
dignity encapsulated in the Constitution of the Republic of South Africa.
4. Scope of the marriage policy (Green Paper)
The scope of this policy seeks to address the following issues:
• Recognition of the principles of equality, non-discrimination, human dignity and

unity in diversity in the marriage legislation.

12
• Consideration of religious and customary marriages that are not recognised by

the current marriage legislation.
• Removal of barriers to the change of sex status for married couples.
• Implications of the types of matrimonial property regimes for monogamous and
polygamous marriages.
• Matrimonial property implications for unregistered customary marriages.
• Equitable recognition of the right to freedom of conscience, religion, thought,
belief and opinion in the solemnisation and registration of marriages.
• Recognition of the role of various stakeholders in the solemnisation, registration
and dissolution of marriages, including traditional leaders and any other secular
organisations.
• Solemnisation and registration of marriages that involve foreign nationals.
• Abuse of the marriage statute using fraudulent marriages and marriages of
convenience.
• Prohibition on marriages that involve minors (persons under 18 years).
• Regulation of polygamous marriages that involve foreign nationals and other
racial and religious groups.
• Designation of other social groups as marriage officers.
• Synchronisation of the marriage and divorce registration processes between
the DHA and the Department of Justice and Constitutional Development.
5. Overview of the policy chapters
Chapter 1 provides a brief historical evolution of the marriage policy and legislation in
South Africa.
Chapter 2 lays the foundation by providing an understanding of marriage in the South

African context. In doing so, this chapter considers a variety of perspectives on
marriage including African perspectives, religious perspectives, and feminist and
LGBTQIA+ perspectives as gleaned from the ministerial dialogues.
Chapter 3 analyses the problems affecting marriages in South Africa. This analysis
includes an assessment of the limitations of the current marriage legislation, child
marriages, marriages of convenience and fraudulent marriages.

13
Chapters 4 and 5 discuss the statistical report on marriages and divorces released
by Statistics South Africa (StatsSA) on 28 February 2019.
Chapter 6 considers policy interventions as remedies to the deficiencies of the current

legal regime governing marriages, and the form and substance of the new marriage
policy.
Chapter 7 is the concluding chapter, which summarises salient policy provisions and
provides a high-level implementation plan.
Annexure 1 sets out the marriage regimes applicable in South Africa as set out in the
Matrimonial Property Act 88 of 1984. In doing so, sections covered under annexure 1
address the consequences of the respective marriage regimes.
Annexure 2 discusses emerging legislative literature from organs of State to the

extent that such literature has not been covered in other chapters. In so doing, sections
covered under annexure 2 consider cases, Bills from parliament and legislative
amendments from the government.
6. Research methodology
The material that has been considered in drafting this policy consists of a combination
of primary and secondary sources of law. The primary sources include interviews with
government officials, traditional leaders, religious leaders, LGBTQIA+ representatives,
questionnaires that were completed during dialogues, speeches by the minister and
deputy minister of Home Affairs, and participants and panel members from the
ministerial dialogues.
The secondary sources include international, regional and national legal instruments
on marriage; judicial decisions by national, regional and international courts;
resolutions, statements, reports, South African Law Reform Commission papers; and
reports of the United Nations and other regional bodies. The issue relating to
marriages has also received attention in academic literature. Thus, academic literature
has also been considered.
Due to the theoretical orientation of this research, the methodology employed was
primarily desktop. The research methodology included an analysis of current

14
legislation, common law, academic articles and case law. International legal
instruments, basic principles and judgments were also consulted to identify acceptable
national and international norms and standards.
It is universally recognised that statistics play a crucial role in policy formulation.

Therefore, the statistical report on marriages and divorces released by Stats SA on
28 February 2019 was also considered. The statistical discussion focuses on civil
marriages, customary marriages and civil unions. Particular attention was given to
issues relating to solemnisation, age at the time of marriage and general trends
relating to registration and other related issues.
In recognition of the State’s obligation to facilitate public participation in the policy and
legislative processes, the DHA hosted a series of ministerial dialogues on the
development of the marriage policy throughout the country to ensure that the views of
all South Africans were canvassed and considered in the decision-making process.
As reflected in the subsequent chapters, the often divergent views of stakeholders
such as traditional leaders, religious leaders, gender and human rights activists, civil
society organisations and academics have also been canvassed in the drafting
process.

15
Chapter 2: Understanding marriage in the South African context
1. Introduction
The purpose of this chapter is to provide an understanding of marriage in the South

African context. This chapter considers a variety of perspectives on marriage in the
South African context, including African, religious, feminist and LGBTQIA+
perspectives on marriage and family as gleaned from the ministerial dialogues.
One perspective of marriage is that it is essential for the stability of families and,
ultimately, society's wellbeing.4 Marital structures provide profound benefits for men,
women and children while, on the other hand, the breakdown of stable marital
structures imposes significant social costs on individuals and society. Marriage is
understood as more than the union of two persons, it is a social institution that is
culturally patterned and integrated into basic social institutions.5
2. Constitutional provisions for the marriage policy
Marriage in South Africa is recognised by the country’s Constitution. Although the Bill
of Rights does not contain the right to marry or found a family, marriage as an
institution is recognised. This is clear from the provisions of Section 15(3)(a)(i) of the
Constitution.6 The Constitution prohibits marriage discrimination based on sexual
orientation, cultural and religious beliefs.
Marriage is also safeguarded by legislation in South Africa, which allows for the legal
standing of marriages and civil partnerships between persons, regardless of their
sexual orientation or gender. Family law supplements this legislation and governs
4
Green Paper on Families: Promoting Family Life and Strengthening Families in South Africa p23
available at https://www.gov.za/sites/default/files/gcis_document/201409/34692gen756a0.pdf
accessed on 18 December 2019.
5
Ibid, p31.
6
Volks NO v Robinson and Others, 2005 (5) BCLR 446 (CC) para 80.

16
domestic or family-related issues that pertain to marriage or a legal status similar to

marriage, the dissolution of marriage and aspects relating to children and death.7
The Constitutional Court has observed that marriage and family are important social
institutions in our society. Marriage has a central and special place, and forms one of
the important bases for family life in our society.8 The Constitutional Court has made
the following observation relating to marriage:
Marriage and the family are social institutions of vital importance. The
institutions of marriage and family are important social institutions that
provide security, support and companionship of members of our society and
bear an important role in the rearing of children. The celebration of a
marriage gives rise to moral and legal obligations, particularly the reciprocal
duty of support placed upon spouses and their joint responsibility for
supporting and raising children born of the marriage.9
The Constitutional Court has also, however, precluded the wholesale extension of
marriage-like rights to opposite-sex unmarried cohabitants on the basis that
differentiating between rights of married and unmarried couples is fair because the
Constitution and international law recognises the importance of marriage as a
fundamental social institution.10 The former justice in the Constitutional Court of South
Africa, Justice Ngcobo, held that opposite sex partners have a choice to marry and
thereby gain their entitlement to legal protection associated with marriage.11
The constitutional recognition of marriage is an important starting point for developing

a marriage policy that will lay the foundation for drafting a new legislation. The
legislation will enable South Africans of varying sexual orientation, religious and
7
Green Paper on Families, op cit, p32.
8
Volks v Robinson, op cit, para 52. See Daniels v Daniels; Mackay v Mackay 1958 (1) SA 513 AD
at 532E, where Hoexter JA referred to marriage as “the most important unit of our social life, the
family.” See also in Belfort v Belfort 1961 (1) SA 257 AD at 259H, where the same judge states
that marriage “is the very foundation of the most important unit of our social life, the family.”
9
Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of
Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA
936 (CC) para 30 – 31.
10
Volks v Robinson, op cit, paras 50 – 57, 80 – 87.
11
Par [90].

17
cultural persuasions to conclude marriages that will accord with the principles of
equality and non-discrimination as encapsulated in the Constitution.
The new marriage policy will be underpinned by the provisions of the Bill of Rights
enshrined in the Constitution:
• Section 9(1) of the Constitution provides that everyone is equal before the law
and has the right to equal protection and benefit of the law.
• Section 9(3) of the Constitution provides that the State may not unfairly
discriminate directly or indirectly against anyone on one or more grounds,
including race, gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth.
• Section 10 of the Constitution provides that everyone has inherent dignity and
the right to have their dignity respected and protected.
• Section 15(1) of the Constitution provides that everyone has the right to
freedom of conscience, religion, thought, belief and opinion.
• Section 36 of the Constitution provides that the rights in the Bill of Rights may
be limited only in terms of law of general application to the extent that the
limitation is reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom.
The Constitution accords equal recognition and protection to both culture and religion.
Section 9(3) of the Constitution prohibits the State from unfairly discriminating against
anyone on one or more grounds, including, among others, ‘religion, conscience, belief,
[and] culture’. Section 15(1) bestows on everyone the right to ‘freedom of conscience,
religion, thought, belief and opinion’.12 Section 31 entitles persons belonging to a
cultural, religious or linguistic community – (a) to enjoy their culture, practise their
religion and use their language; and – (b) to form, join and maintain cultural, religious
and linguistic associations and other organs of civil society’.13 Moreover, culture also
enjoys constitutional recognition and protection by virtue of sections 181(1)(c), 211
12
Ndivhuwo Isheml Moleya ‘Equality for all religions and cultures in the South African legal system’
De Rebus in 2018 (July) DR 30 Available at http://www.derebus.org.za/equality-for-all-religions-
and-cultures-in-the-south-african-legal-system/
13
Ibid.

18
and 212 of the Constitution. It is clear that neither culture, nor religion enjoy elevated
constitutional protection.14
The State is obliged to craft a marriage policy that respects, protects, promotes and
fulfils the rights in the Bill of Rights. This task ought to be undertaken with the
understanding that the Constitution does not accord hierarchical precedence to any
particular right over any other rights entrenched in the Bill of Rights.15 Under these
circumstances the balancing of different interests such as the right to equality, the right
to human dignity, the right to freedom of religion and belief and the right to cultural
practices must be taken into consideration.
3. Perspectives on family and marriage
Given South Africa’s diversity, it stands to reason that a multiplicity of perspectives

exist on marriage and family in the country. As such, the DHA’s series of ministerial
dialogues were part of an effort to engage with interest groups and ensure that the
views of all South Africans were canvassed and deliberated on when developing the
marriage policy.
In addressing stakeholders at the ministerial dialogues, Minister of Home Affairs Dr

Aaron Motsoaledi commented:
… your collective expertise, experiences, wisdom and indeed your views will
go a long way in crafting and enriching a policy that will lay the ground for
new legislation which is aligned and subscribes to the doctrine of the
constitutional principles of equality, non-discrimination and human dignity as
per the Constitution of the Republic of South Africa. Through the
consultations, we aim to identify key issues that should be addressed by the
new marriage policy.16
14
Ibid.
15
Johncom Media Investments Limited v M and Others 2009 (4) SA 7 (CC) para 19.
16
Keynote Address by Home Affairs Minister Dr Aaron Motsoaledi For The Marriage Policy
Dialogues http://www.dha.gov.za/index.php/statements-speeches/1283-keynote-address-by-
home-affairs-minister-dr-aaron-motsoaledi-for-the-marriage-policy-dialogues

19
This statement encapsulated the purpose of the ministerial dialogues and the value
derived from them.
The stakeholder engagement report provided an account of the inputs received at the
ministerial dialogues. The various perspectives on marriage that have emerged from
the ministerial dialogues are summarised in the following subsection.
3.1. African perspectives on marriage and family
These perspectives on marriage were gleaned from the ministerial dialogues with
traditional leaders:
• Marriage is a union exclusively between a man and a woman. Generally

speaking, traditional leaders do not accept same-sex marriages. Traditional
leaders believe that the age requirement for marriage must be 18 years of age.
• Polygamous marriages are an acceptable form of marriage. Traditional leaders;
however, object to the proposition that the consent of the first wife in a
polygamous marriage is a requirement for the subsequent marriage of her
husband to be valid. Traditional leaders emphasised that women are not equal
to men and that each gender has its own role in the family and society. Only
men are permitted to have multiple spouses; accordingly, traditional leaders
deem polyandry an unacceptable practice because it is not of African origin.
• Questions were raised about the equal treatment of women in polygamous
marriages. Traditional leaders submitted that women are generally vulnerable
during the divorce proceedings in polygamous marriages. It emerged that due
to their possession of a marriage certificate, registered wives hold a stronger
position in law than unregistered wives. Unregistered wives bear the onerous
burden of proving the existence of a polygamous marriage.
• From a cultural perspective, marriage involves the coming together of two
families, hence the importance of ilobolo negotiations and paying of a bride
price by a male.
• The Recognition of Customary Marriage Act of does not fully recognise the
cultural practices of “ukuthelwa ngenyongo” and “ukugcagca” (traditional
celebration of marriage), which are essential elements of solemnising a
marriage in Africa. Traditional leaders also submitted that the Recognition of
Customary Marriages Act does not recognise the cultural practice of

20
“ukungena” (once a woman marries into a particular family, she is married into
that family for life).
• “Ukuthwala” (the practice of abducting young girls and forcing them into
marriage, often without the consent of their parents) is still practised in certain
parts of the country, particularly under circumstances where the parties do not
have sufficient finances to initiate “ilobolo” and decide to elope.
• Traditional leaders argued for the recognition of the following wives in
customary marriages:
ü Recognition of a candle or principal wife (Lebone or Timamollo or
Mmakgoši); that is, a woman chosen by the nation and married to the
king for the sole purpose of giving birth to a future king.
ü Recognition of a family wife (Ngwetsi ya lapa); that is, a woman that is
married into the family where there is no male heir in order to continue
the family name.
• In circumstances where the first wife is not able to bear children, traditional
leaders advocated for the recognition of the rights of customary wives who are
married to fulfil the purpose of giving birth to a future king in an instance that
the principal wife is unable to bear a male child.
• Many polygamous marriages are not registered. Traditional leaders therefore
emphasised that they should be able to issue marriage certificates and
highlighted the need to explore practical ways of recording marriages, such as
keeping affidavits with izinduna (traditional councils).
• The issue relating to marriages with persons from neighbouring countries was
also raised. Traditional leaders stated that polygamous marriages with persons
from neighbouring countries also exist. The need to recognise these marriages
was highlighted.
• The KhoiSan traditional leadership highlighted that marriage is an essential part
of family life. Emphasis was also placed on the need to recognise, respect and
to promote KhoiSan culture.
• The KhoiSan traditional leadership also stated that the rights of women need
to be honoured and respected. Particular attention was drawn to the needs and
the rights of women in polygamous marriages.

21
• The KhoiSan traditional leadership equally emphasised that they should be

able to issue marriage certificates. Many KhoiSan marriages are unregistered
as the DHA centres are some distance away. A concern was raised around the
non-recognition of the KhoiSan customary marriages by the Recognition of
Customary Marriages Act. The importance of pre-marital counselling was also
identified.
The following perspectives on marriage were gleaned from the plenary discussion:
• Women are the most vulnerable in marriages especially during the institution
of divorce proceedings.
• It remains a matter of grave concern that there are women who do not enjoy
the matrimonial property interests after divorce because their marriage was not
registered.
• Questions were raised about the equal treatment of women in polygamous
marriages. Stakeholders submitted that registered wives hold a higher status
than unregistered wives due to their ability to produce a proof of marriage.
Unregistered wives have the burden of proof hanging over them.
• Stakeholders further submitted that polygamous marriages with foreign
nationals need to be legally accommodated.
• The DHA must consider appointing izinduna and chiefs as marriage officers
since the DHA offices are far from rural areas where most customary marriages
take place. As such, the need for communities to be further educated on these
topics in rural areas was identified.
• Issues around the ongoing practice of ukuthwala in certain parts of the country
are also a great concern. Considering that ukuthwala predominantly affects
women and children, the continuation of this practice raises serious questions
relating to consent, abduction, rape and the protection of women and children’s
rights.
• South African law generally does not recognise the right of a woman to take
more than one husband. Queen Modjadji (also known as the Rain Queen) of
the Balobedu people is the exception. However, this exception, is yet to find
expression in law.

22
3.2. Religious perspectives on marriage and family
The following perspectives on marriage were gleaned from the ministerial dialogues
with religious leaders:
• Marriage is a union exclusively between a man and a woman. Generally

speaking, religious leaders do not accept same-sex marriages. Religious
leaders also believe that the age requirement for marriage must be 18 years of
age. Furthermore, religious leaders of the Christian faith emphasised that
polygamous marriages are not recognised by their faith.
• It should be noted that religious leaders generally objected to being expected
to solemnise same-sex couples as this was contrary to their religious beliefs.
• Religious leaders from the Hindu, Jewish, Muslim and Rastafarian faiths
highlighted that marriages according to their respective faiths were still not
recognised under South African laws. That notwithstanding, religious leaders
of these faiths continued to solemnise marriages according to their respective
faiths, but registration remains an issue. Women are disproportionately affected
by this gap as they struggled to obtain equitable distribution of assets in the
event of divorce or death.
• The objection by religious leaders to solemnising same-sex marriages is

discriminatory. All genders must be recognised, including transgender and non-
gender conformists. Other stakeholders submitted their objection to marrying
same-sex couples.
• Rastafarians remain a largely unrecognised cultural and religious community
that believes in polygamous marriages.
• Others were of the view that women suffer the most during divorce proceedings
as they struggle to obtain matrimonial property interests when their divorce is
finalised.
• It was proposed that marriage officers ought to be vetted and trained to curb
the scourge of fraudulent marriages. The DHA was also encouraged to
introduce a biometric system to curb fraudulent activities.

23
• Questions were raised about the double standards of religious denominations

who support polygamous marriages and not polyandrous marriages.
• Hindu, Jewish, Muslim and Rastafarian marriages are not recognised by South
African law. Despite this, adherents of these religious faiths continue to perform
their own religious marriages rituals. Consequently, women are particularly
prejudiced as they struggle to obtain an equitable division of the joint marital
estate.
3.3. Human rights and gender perspective on marriage and family
The following perspectives on marriage were gleaned from the ministerial dialogue
with human rights and gender activists (activists):
• The age requirement for marriage must be 18 years of age. The State must
respect and promote the rights of same-sex couples. Everyone must be able to
enter into a marriage; this must include all genders, including transgender and
non-gender conformists. Activists believe that the religious leaders’ objection
to solemnising same-sex marriages is discriminatory.
• A concern was raised about the legal requirements for couples who undergo
surgical and/or medical treatment to alter their sexual characteristics from those
of a male to those of a female (or vice versa). Activists see the need for
individuals who undergo sex changes to divorce and remarry under a different
Act as problematic. They also highlighted that the process is daunting as DHA
officials are rude, discriminatory and defamatory.
• Marrying a foreign national is a long and strenuous process.
• Many members of the LGBTQIA+ community remain unmarried due to rude
DHA marriage officers. As a result, some members of the LGBTQIA+
community choose unregistered domestic partnerships. This therefore strips
the affected individuals of their dignity.
• Moreover, activists submitted that equality demands that polyandry be legally
recognised as a form of marriage.
• Gender non-conformists require their sense of identity to be recognised by DHA

systems. It was submitted that laws limit full expression of their identity and

24
dignity. It was further stated that a sex change does not enable them to remain
married under the Marriage Act.
• Stakeholders demanded that the DHA and pastors (marriage officers)
solemnise their marriages. It was further demanded that marriage officers ought
to be precluded by law from refusing to solemnise the marriages of same-sex
couples as currently provided for in the Civil Union Act.
• DHA officials make defamatory remarks about them. As such, they required
training in order to rectify their demeaning conduct.
• The Civil Unions Act does not fully recognise all issues pertaining to same-sex
marriages such as those that pertain to non-binary people.
• People who have undergone sex changes and those who do not recognise
gender norms find that the DHA and current marriage laws are exclusionary,
strip them of their dignity and treat them unequally.
• If men are permitted to have more than one wife under customary law, then
equality demands that polyandry be recognised so as to be consistent in the
application of the equality principle.
• The contradictory position relating to the various ages of consent in South
African law arose. For example, contradictions relating to legislation that
regulates the age of consent for sexual intercourse, statutory rape, abortion
and marriage were highlighted. The need for legal harmony was identified as
an issue that needs legislative intervention.
3.4. Civil society and academic perspectives on marriage
The following perspectives on marriage were gleaned from the ministerial dialogue
with civil society and academics:
• The age requirement for marriage must be 18 years of age. Civil society and
academics emphasised that children are incapable of giving consent. They also
submitted that proxies under these circumstances limit children’s development.
• The State needs to respect and promote the rights of same-sex marriages. The
religious leaders’ objection to solemnising same-sex marriages is
discriminatory. Civil society and academics state that legal recognition should
be granted to all genders, including transgender and gender non-conformists.

25
• Muslims, Hindu and Jewish marriages are largely unrecognised by South

African law. The need to redefine marriages and families was emphasised.
• Women are the most disadvantaged in divorces. They do the housework
without compensation and are left in a worse position after divorce as men hide
their money in trusts.
• The DHA must comply with a plethora of court cases that compel government
to make it easier to register marriages as well as to protect the rights of women.
• The DHA should also consider international jurisprudence on how nuances
around gender have been dealt with. To this end, civil society and academics
suggested the need to draw from the marital regimes of Kenya and Tanzania.
• There is also a general need to provide more protection to women in marriages
and to establish family courts.
• The DHA needs to be open to gender non-conformists in its forms and
processes. In developing a new marriage policy, the DHA should consider
developing gender-neutral marriages whereby any person can marry an
individual of their preferred choice.
4. Concluding observations
It is clear from the various perspectives elicited from the ministerial dialogues that
South Africans have divergent views on marriage. This is unsurprising considering
South Africa’s diverse population. Indeed, marriages in South Africa have a deeply
religious and cultural dimension. For instance, certain stakeholders believe that
marriage should only be between a man and a woman, in other words, marriage
should be reserved for heterosexual couples. On the other hand, there were
stakeholders who had an inclusive understanding of marriage that incorporates same-
sex couples and gender non-conformists. According to these stakeholders, marriage
is an institution that should be made accessible to all, irrespective of gender.
The issue of polygamy and polyandry also was topical and controversial during the
engagements. While some stakeholders believed in the practice of polygamy, there
were also those who opposed it. This equally applies to the practice of polyandry.
Ironically, stakeholders who believed in the practice of polygamy (polygene) were
opposed to the practice of polyandry. There were also stark differences about the

26
manner in which marriages are entered into. For instance, some stakeholders stated
that from a cultural perspective, marriage involves the coming together of two families,
hence the importance of the requirement of negotiation and the involvement of the
respective families. This, however, did not seem to be the prevailing view amongst
stakeholders who entered into civil marriages and civil unions. Other stakeholders only
emphasised the importance of consent between the parties who are getting married.
Despite these differences, stakeholders were unanimous that children should not be
permitted to enter into marriages irrespective of parental consent. Legal reform in this
regard was called for. Stakeholders also unanimously articulated the need to protect
the matrimonial property interests of women at the stage of divorce, particularly
women in polygamous marriages.
The issue of the recognition of Muslim, Hindu and Jewish marriages arose and
stakeholders raised the urgent need for the State to recognise these marriages
through legislative means.

27
Chapter 3: Overview of the marriage legal framework and analysis
1. Introduction
Marriages in South Africa are currently regulated through four pieces of legislation: the
Marriage Act, which governs monogamous marriages of heterosexual persons; the
Black Administration Act, which governs monogamous marriages of heterosexual
black persons who married before 1988, the Recognition of Customary Marriages Act,
which governs monogamous and polygamous marriages of heterosexual persons;
and the Civil Unions Act, which governs the monogamous marriages of same-sex
persons. There are strong references in some of the laws governing marriages that
harken to the religious marriage rituals practiced in Christian Western marriages.
The democratic dispensation also inherited the marriage systems of the former
homelands states such as Transkei, Venda, Bophuthatswana, Ciskei (TBVC states),
Gazankulu, KaNgwane, KwaNdebele, KwaZulu, Lebowa and Qwaqwa.
The purpose of this chapter is to analyse the problems affecting marriages in South
Africa. The analysis includes an assessment of the limitations of the current marriage
legislation, child marriages, marriages of convenience and fraudulent marriages.
2. Overview of marriage legislation
As previously stated, there are four pieces of legislation that govern marriages in South
Africa. These are briefly discussed below:
2.1. Marriage Act 25 of 1961
The Marriage Act governs monogamous marriages of heterosexual persons. The

provisions of the Marriage Act and its regulations are applicable to all adult
heterosexual persons of all population groups who marry in South Africa. The Marriage
Act also makes provision for the marriage of minors provided that the legally required
consent has been granted and submitted to the marriage officer in writing. Generally,
the consent of both parents is required. A guardian or step-parent can give consent
only if they have been lawfully appointed as the legal guardian of the minor.

28
According to the Marriage Act, every magistrate, every special justice of the peace
and every native commissioner shall, by virtue of his or her office and so long as he
or she holds such office, be a marriage officer for the district or other area in respect
of which he or she holds office. The minister and any officer in the public service
authorised by him may designate any officer or employee in the public service or the
diplomatic or consular service of the State to be, by virtue of his office and so long as
he holds such office, a marriage officer, either generally or for any specified race or
class of persons or country or area.
Furthermore, the Marriage Act states that the minister and any officer in the public
service authorised by him may designate any minister of religion-or any person holding
a responsible position in any religious denomination or organisation to be, so long as
he is such a minister or occupies such position, a marriage officer for the purpose of
solemnising marriages according to Christian, Jewish or Mohammedan rites or the
rites of any Indian religion.
In terms of the Marriage Act a marriage officer shall solemnise any marriage in a
church or other building used for religious services or in a public office or in a private
dwelling-house. A marriage shall be solemnised in the presence of the parties
themselves and at least two competent witnesses.
In solemnising any marriage, the marriage officer, if he is a minister of religion or a

person holding a responsible position in a religious denomination or organisation, may
follow the rites usually observed by his religious denomination or organisation, but if
he is any other marriage officer the marriage shall be solemnised according to a
prescribed formula.
To register the marriage, the couple, the two witnesses and the marriage officer must
sign the marriage register immediately after the solemnisation of the marriage. Then
the marriage officer must issue the parties with a handwritten marriage certificate free
of charge. The marriage officer must then submit the marriage register to the nearest
office of the DHA, where the marriage details will be recorded in the national population
register (NPR). Not fulfilling these requirements (registering a marriage) does not
affect the validity of the marriage and registration of the marriage can be effected
postnuptially. A duly signed marriage certificate serves as prima facie proof of the
existence of the marriage.

29
Limitations of the Marriage Act
Despite its many redeeming features, the following issues have been identified in the
Marriage Act:
• The Marriage Act makes provision for the marriage of minors provided that
consent, which is legally required, has been granted and submitted to the
marriage officer in writing. This is contrary to the State’s constitutional,
international and regional obligations to protect children and to act in their best
interests.
• According to the Marriage Act, a marriage officer who is a minister of religion
or a person holding a responsible position in a religious denomination or
organisation may refuse to solemnise a marriage that would not conform to the
rites, formularies, tenets, doctrines or discipline of his religious denomination
or organisation. This provision lends itself to discriminatory behaviour disguised
as religious doctrine.
• The Marriage Act does not provide for a transitional mechanism for persons
who initially got married under the provision of this Act but subsequently
underwent a sex change.17
• Aside from magistrates and special justices of the peace, the Marriage Act does
not provide for the solemnisation of marriages by other social groups.
2.2. Black Administration Act 38 of 1927
The partly repealed Black Administration Act is the conduit through which the erstwhile
government sought to control and manage black people. Historically, civil marriages
of black people were governed by the Black Administration Act and civil marriages of
white people were governed by the Marriage Act.18
The Black Administration Act governs monogamous marriages of heterosexual black

persons who married prior to 1988. All civil marriages concluded by Africans were
automatically out of community of property while all other civil marriages concluded in
17
KOS and Others v Minister of Home Affairs and Others 2017 (6) SA 588 (WCC).
18
Rautenbach and Du Plessis, ‘African customary marriages in South Africa and the intricacies of a
mixed legal system: Judicial (in)novatio or confusio?’ (2012) 57:4 McGill Law Journal – Revue de
droit de McGill, p758.

30
the country were regarded as being in community of property, except where the parties
had concluded an antenuptial contract. If a black couple wanted their marriage to be
in community of property, they had to make a declaration stating their intention before
a commissioner one month prior to the wedding.19
The Marriage and Matrimonial Property Law Amendment Act, which came into
operation on 2 December 1988, amended the Black Administration Act. The effect was
that all marriages in South Africa were given equal standing and the Matrimonial
Property Act was made applicable to civil marriages of black people that were
concluded after 2 December 1988. Marriages concluded from 2 December 1988 were
automatically in community of property unless an antenuptial contract was entered into
and registered within three months of its attestation before a notary in the deeds
registry.20
Limitations of the Black Administration Act
The provisions of Section 21(2) of the Matrimonial Property Act are unconstitutional
and invalid as they maintain and perpetuate the discrimination created by Section
22(6) of the Black Administration Act. According to these provisions, the marriages of
black people under the Black Administration Act prior to 1988 are automatically out of
community of property.
2.3. Recognition of Customary Marriages Act 120 of 1998
The Recognition of Customary Marriages Act governs monogamous and polygamous

marriages of heterosexual persons. This Act:
• provides for the recognition of customary marriages

• specifies the requirements for a valid customary marriage
• regulates the registration of customary marriages
• provides for the equal status and capacity of spouses in customary marriages
• regulates the proprietary consequences of customary marriages and the
capacity of spouses in such marriages
19
Ibid.
20
Bhuqa and West, ‘Patrimonial Consequences’. Lexis Digest, available at
http://www.ghostdigest.com/articles/patrimonial-consequences/53773

31
• regulates the dissolution of customary marriages

• provides for regulations
• repeals certain provisions of certain laws.
The Recognition of Customary Marriages Act, requirements for a valid customary

marriage are that the prospective spouses must both be over the age of 18 years, they
must both consent to be married to each other under customary law and the marriage
must be negotiated and entered into or in accordance with customary law. If either of
the prospective spouses is a minor, parents or a legal guardian must consent to the
marriage.
The spouses of a customary marriage have a duty to ensure that their marriage is
registered. Either spouse may apply to the registering officer using the prescribed form
and must furnish the prescribed information and any additional information that the
registering officer may require to be satisfied about the existence of the marriage.
A certificate of registration of a customary marriage issued under the Recognition of

Customary Marriages Act constitutes prima facie proof of the customary marriage and
the particulars contained in the certificate. Failure to register a customary marriage
does not affect the validity of the marriage.
Limitations of the Recognition of Customary Marriages Act
The Recognition of Customary Marriages Act makes provision for the marriage of
minors provided that the prospective spouses’ parents, or legal guardian, consent to
the marriage. This is contrary to the State’s constitutional, international and regional
obligations to protect children and to act in their best interests.
Although the Act provides for the registration of customary marriages, it is not
compulsory for the marriage to be registered. In other words, failure to register a
customary marriage does not affect its validity. This generally leaves women and
children vulnerable. The vulnerability is amplified during divorce and when either of
the spouses passes away. This also has an impact on the proprietary consequences
of the marriage.
The Traditional Leadership and Governance Framework Act 41 of 2003 provides for
the establishment and recognition of traditional councils. This is in line with Sections

32
211 and 212 of the Constitution. Traditional councils are officially recognised as the
traditional leadership of the traditional communities that they serve by statute and for
whom they perform certain public functions, in accordance with the Constitution.
Accordingly, they are organs of State. Their authority and power are devolved upon
them as organs of State from the Constitution itself.21
Nevertheless, the Recognition of Customary Marriages Act does not envisage a role
for traditional councils in the registration process of customary marriages, even though
involving them would be advantageous because of their authority and proximity to the
communities that they serve. Many marriages were not registered simply because
DHA offices are too far away. In this way, the DHA’s role in the registration process of
customary marriages could be augmented by traditional councils.
To a certain extent, this explains the low registration rate of customary marriages per
annum. While the Recognition of Customary Marriages Act recognises polygamous
marriages, no such recognition is accorded to polyandrous marriages.
Section 7(1) of the Recognition of Customary Marriages Act provides that the
proprietary consequences of customary marriages before this Act commenced
continue to be governed by customary law. While section 7(2) provides that customary
marriages entered to after the commencement of this Act are marriages in community
of property. The differential treatment raised by sections 7(1) and 7(2) for customary
marriages before and after the commencement of the Act is unconstitutional as it
unjustifiably limits the right to human dignity and the right not to be unfairly
discriminated against.22 This order has been confirmed by the Constitutional court as
well.
The Act also does not clarify that a valid customary marriage could be concluded
without the full payment of ilobolo, nor does it make provision for entering into a
polygamous marriage with non-citizens. This poses a challenge when such marriages
occur, especially among persons who are members of the same clan but are
separated by a borderline.
21
Pilane and Another v Pilane and Another 2013 (4) BCLR 431 (CC) para 44.
22
Ramuhovhi and Others v President of the Republic of South Africa and Others 2018 (2) BCLR 217
(CC)

33
2.4. Civil Union Act 17 of 2006
The Civil Union Act regulates the solemnisation and registration of civil unions either
by marriage or a civil partnership and provides for the legal consequences of civil
unions. In essence this Act seeks to govern monogamous marriages of both same-
sex and of opposite sex persons.
A marriage officer may solemnise a civil union according to the provisions of the Civil
Union Act, and has all the powers, responsibilities and duties conferred under the
Marriage Act to solemnise a civil union.
Under the Civil Union Act, prospective civil union partners must individually and in
writing declare their willingness to enter into their civil union with one another by
signing the prescribed document in the presence of two witnesses.23 The marriage
officer must keep a record of all civil unions they conducted,24 and transmit the civil
union register and records to the public service official responsible for the population
register in that area.25 The public service official must then register the particulars of
the civil union to be included in the population register.
Limitations of the Civil Union Act
Section 6 of the Civil Union Act allows marriage officers to object to solemnising a civil
union between persons of the same sex on grounds such as conscience, religion and
belief, and they cannot be compelled to do so. The objection is discriminatory as all
genders are recognised by the Constitution, including transgender and non-
conforming persons.
According to gender activists, Section 6 is used as a vehicle to perpetuate

discrimination against same-sex couples, particularly where the impact of a
conscientious objection provision is markedly greater on the couple than on the
potential objector.
23
Section 12(1).
24
Section 12(5).
25
Section 12(6).

34
2.5. Religious marriages that are excluded by current legislation
Muslim, Jewish, Hindu and other religious marriages could potentially be conducted in
terms of the Marriage Act, because the Act provides for the appointment of marriage
officers ‘for the purpose of solemnising marriages according to Christian, Jewish or
Mohammedan rites or the rites of any Indian religion’.26 However, unless these
marriages also comply with the other requirements of the Marriage Act, including the
marriage formula, opposite sex couples, presence of both parties and so forth, they
would not be valid in terms of the Marriage Act. For this reason, members of religions
other than mainstream Christian and Jewish institutions often enter into both civil and
religious marriages. When they are not also married according to the Marriage or Civil
Union Acts, the religious marriages have no legal validity.
The courts have extended many marriage-like rights and processes to spouses in
Muslim marriages.27 There has been less litigation on behalf of adherents of the
Hindu28 and other faiths, with the result that these religious marriages have fewer and
weaker rights than Muslim marriages. In most respects spouses in unrecognised
religious marriages, are in the same position as unmarried intimate partners.
The failure to recognise these religious marriages is untenable and discriminatory.

There have been many jurisprudential and legislative developments in the form of Bills
in an attempt to formalise the recognition of these marriages. These jurisprudential
and legislative developments are discussed in chapters that follow.
26
Section 3(1).
27
For instance, Amod v Multilateral Motor Vehicle Accidents Fund 1999 4 SA 1319 (SCA); Daniels v
Campbell 2004 5 SA 331 (CC); Hassam v Jacobs 2009 5 SA 572 (CC); Hoosein v Dangor [2010] 2
All SA 55 (WCC).
28
For instance, Govender v Ragavayah 2009 3 SA 178 (D); Singh v Ramparsad 2007 3 SA 445 (D).

35
SECTION 2: STATISTICS ON MARRIAGES AND DIVORCES
Chapter 4: Statistics on marriage
1. Introduction
The purpose of this chapter is to provide an overview of all marriages registered on

the NPR. The discussion focuses on civil marriages, customary marriages, civil unions
and issues relating to solemnisation, age at the time of marriage, general trends on
registration and other related issues.
Statistics South Africa released a report on 28 February 2019 relating to civil

marriages, customary marriages and civil unions that were registered in 2017 on the
NPR, which is maintained by the DHA. The report demonstrates trends in the number
of marriages and unions as well as demographic and other dynamics among married
couples. Furthermore, the report highlights trends in divorces including the
demographic and occupational characteristics of the plaintiffs; age at the time of
divorce; duration of marriage at the time of divorce and divorces involving couples with
minor children as well as divorces that were granted in 2017 by the courts. The
information on marriages and divorces is important for understanding the formation
and dissolution of marriage relationships and implications on the household structure
and composition.29
2. Civil marriages
In 2017, 135 458 South African citizens and permanent residents registered civil
marriages with the DHA. The number of registered marriages had consistently
declined in the ten-year period between 2008 and 2017, except for a slight increase
of 0,6% between 2015 and 2016. During the period from 2008 to 2017, the highest
number of marriages was recorded in 2008 (186 522) and the lowest number in 2017.
29
Statistical Release P0307, Marriages and Divorces 2017, p 1, Available at
http://www.statssa.gov.za/publications/P0307/P03072017.pdf accessed on 18 December 2019.

36
The 2017 figure of 135 458 civil marriages shows a decrease of 2,9% from the 139 512
marriages recorded in 2016.30
2.1. Solemnisation of civil marriages
More than half of the 135 458 marriages (78 768 or 58,1%) were solemnised by DHA
marriage officers and 38 981 (28,8%) by ‘religious’ rites. The type of solemnisation rite
was not specified in 17 709 (13,1%) marriages. Furthermore 418 (0,3%) marriages
were solemnised outside the borders of South Africa but subsequently registered in
South Africa.31
The report analysed provincial variations in marriage registration and noted that the
province of marriage registration was not necessarily the province of the couple’s
usual residence, as couples could choose where to marry. The results further indicated
that in 2017, most marriages were registered in Gauteng (35 359 or 26,1%) and the
least in the Northern Cape (3 950 or 2,9%). North West had the highest proportion of
marriages solemnised by civil marriage officers, at 81,0% (7 479). The Western Cape
recorded the highest proportion of marriages solemnised by religious marriage
officers, at 50,7% (11 230).
2.2. Marital status at the time of civil marriage
The majority of marriages in all provinces in 2017, for both bridegrooms and brides,
were first-time marriages. There were 111 306 (82,2%) men that had never married,
5 074 (3,7%) divorcees and 1 171 (0,9%) widowers. Women that had never married
accounted for 117 779 (86,9%) brides, while 3 227 (2,4%) were divorcees and 896
(0,7%) were widows. The marital status of 17 907 (13,2%) bridegrooms and 13 556
(10,0%) of brides were unspecified. A high proportion of marriages between
bridegrooms and brides marrying for the first time was observed in Limpopo, where
8 514 (86,1%) and 9 163 (92,6%) were never married men and women respectively.
The profile of those that were remarrying showed that remarriages were more
prevalent among divorcees than the widowed. Divorcees accounted for 5 074 (3,7%)
30
Ibid, p2.
31
Ibid.

37
males, while 1 171 (0,9%) were widowers; women accounted for 3 227 (2,4%)
divorcees and 896 (0,7%) widows.32
Irrespective of their marital status, however, men generally married women who had
never been married. Thus, of men that had never been married before 104 859
(94,2%) wedded women that had never been married before, 1 151 (1,0%) married
divorcees and 643 (0,6%) married widows. In addition, irrespective of more divorcees
and widowers marrying women that had never been married before, male divorcees
married more female divorcees (826 or 16,3%) than widows (43 or 0,8%). Similarly,
the number of widowers who married widows, at 167 (14,3%), was higher than the 27
(2,3%) that married female divorcees.33
The report showed that men tended to marry younger women, as 103 901 (76,7%) of
the 135 458 bridegrooms were older than their brides. However, 21 144 (15,6%) were
younger than their brides and 10 412 (7,7%) were the same age as their brides. This
observed age pattern is the same irrespective of the marital status of the bridegroom
at the time of marriage. However, the magnitude differs by the marital status of the
spouses at the time of marriage. For example, 44,2% of men that had never married
before but who married divorcees were younger than their brides and 4,7% of male
divorcees who married widowed women were also younger than their brides. A
relatively small percentage (5,6%) of male divorcees married women that had never
married before who were older than them.34
2.3. Age at the time of civil marriage
In 2017, marriages were registered for 2 bridegrooms and 70 brides aged less than
18 years, with 62 of these brides marrying for the first time. Most men marrying for the
first time (28 591 or 25,7%) were 30–34 years whereas most women marrying for the
first time (34 351 or 29,2%) were 25–29 years. There were more younger women (less
than 35 years) that married for the first time than younger men that had never been
married before; the opposite was true at older ages (35 years and older).35
32
Ibid, p 3.
33
Ibid.
34
Ibid.
35
Ibid.

38
The median age of bridegrooms had remained 36 years since 2015 and brides 32
years since 2016. This indicates that women generally married younger than men. For
first time marriages in 2017, the median ages for men and women was 34 years and
31 years respectively, showing an age difference of three years. For remarriages, the
median age for widowers and widows in 2017 was 55 years and 31 years respectively,
which is a 24-year age gap. While the median age for widowers increased consistently
from 50 in 2013 to 55 in 2017, except for the decrease to 49 years in 2014, the median
age of widows fluctuated between 30 and 32 years between 2013 and 2017.36
3. Customary marriages
3.1. Trends in the registration of customary marriages (2008–2017)
In 2017, 2 588 customary marriages were registered with the DHA, indicating a
decrease of 34,9% from 3 978 customary marriages registered in 2016. The number
of registered customary marriages fluctuated between 2008 and 2017. The highest
number of registered customary marriages was recorded in 2008 (16 003) while the
lowest number was recorded in 2017 (2 588).37
The majority of customary marriages were registered later than the year of marriage.
From 2013 to 2017, the proportion of marriages that were registered in the same year
they took place ranged from 18,6% in 2013 to 22,4% in 2017.38
3.2. Age at the time of customary marriage
In 2017, 1 452 (56,1%) of registered customary marriages were from KwaZulu-Natal,

followed by Limpopo with 535 (20,7%). The other seven provinces had less than 7%
each. In 2017, 8 (0,3%) bridegrooms and 77 (3,0%) brides were younger than 18
years.39
36
Ibid, p 4.
37
Ibid.
38
Ibid.
39
Ibid.

39
Similar to civil marriages, bridegrooms were generally older than brides, with an age
difference of about five to six years for customary marriages registered between 2013
and 2017. The median ages of both bridegrooms and brides fluctuated over the period,
from between 33 and 35 years for men and 27 and 29 years for women. A further
comparison of the ages of bridegrooms and brides shows that in 2017, 85,9% of
bridegrooms were older than their brides, 9,7% were younger and 4,4% were the same
age.40
3.3. Polygamous marriages with multiple spouses
As of September 2019, 342 809 customary marriages were registered on the NPR.
The majority of these marriages, 333 387, were registered with one spouse and 8 410
were registered with two spouses. Marriages registered with three to nine spouses
range from 814 to two. Only one was registered with 10 spouses.
4. Civil unions
4.1. Trends in the registration of civil unions (2013–2017)
In 2017, 1 357 civil unions were registered (including three civil unions of South African
citizens and permanent residents living outside South Africa). In general, the number
of civil unions registered in South Africa increased over the five-year period.
Registered civil unions increased by 2,0% from 1 331 in 2016 to 1 357 in 2017. The
provincial distribution of civil unions registered in 2017 indicated that Gauteng and the
Western Cape, with 507 (37,4%) and 391 (28,8%) registrations respectively, had the
highest number of civil unions. In total, 66,2% of civil unions in 2017 were registered
in these two provinces. The lowest number of registered civil unions was 16 (1,2%) in
the Northern Cape and 15 (1,1%) in Limpopo.41
4.2. Fraudulent marriages and marriages of convenience
The DHA receives at least 2 000 queries about illegal marriages a year. In the period
between 1 April 2018 and 31 May 2019, the DHA discovered 2 132 cases of fraudulent
40
Ibid.
41
Ibid.

40
marriages. Of these 1 160 were found to be fraudulent and were annulled by the
department. Some of these happen because of fraud syndicates consisting of DHA
officials and some marriage officers outside the department. Such marriage officers
knowingly submit fictitious marriages for registration and, working with Home Affairs
officials, such marriages get registered on the NPR.
A further 646 marriages were found to be legitimate, even though undesirable; that is,
marriages of convenience that can only be annulled through a court process. These
marriages occur when a South African and a non-South African marry each other for
convenience. The South African, usually a woman, is rewarded with huge sums of
money and the non-South African gains easy citizenship through this marriage.
5. Conclusion
The report records that in total, 135 458 civil marriages were registered in South Africa
in 2017, with 78 768 (58,1%) being solemnised by DHA marriage officers. The highest
number of civil marriages was registered in Gauteng (35 359), followed by the Western
Cape (22 144) and KwaZulu-Natal (21 206), and the lowest was registered in Northern
Cape (3 950). The majority of civil marriages in 2017 for both bridegrooms (111 306)
and brides (117 779) were first time marriages, with women generally entering into
marriage at younger ages than men.42
The number of registered customary marriages in 2017 was 2 588, a decrease of

34,9% from the 3 978 recorded in 2016. The majority of bridegrooms (2 223 or 85,9%)
were older than their brides, with the gap in median ages at registration of customary
marriage much wider than other types of marriages. Of the 1 357 registered civil
unions in South Africa in 2017, most were registered in Gauteng (507) and the Western
Cape (391), with the smallest number in the Northern Cape (16) and Limpopo (15).43
42
Ibid, p 8.
43
Ibid.

41
Chapter 5: Statistics on divorce
1. Trends in divorce (2008 – 2017)
The purpose of this chapter is to consider the statistics relating to divorces in South
Africa. Divorces in 2017 increase by 64 (0,3%) to 25 390 from the 25 326 cases
processed in 2016. An analysis showed that while the number of divorces fluctuated
between 2008 to 2011, it increased consistently from 2012 to 2017. The highest
number of divorces was observed in 2009 (30 763) and the lowest in 2011 (20 980).
In 2017, about 155 divorces were granted to same-sex couples, of which 115 were
female and 40 were male. In 2017, the observed crude divorce rate was 0,4 divorces
per 1 000 of the estimated resident population.44
Black African couples had the highest number of divorces compared to other
population groups during the ten-year period (2008 to 2017). In 2017, 11 309 (44,5%)
of the 25 390 divorces were from the black African population group, followed by 6
048 (23,8%) white, 4 517 (17,8%) coloured and 1 401 (5,5%) Indian/Asian.45 The
population group of 1 282 couples was not specified.
1.1. Characteristics of plaintiffs
More wives initiated divorce proceedings than husbands; 12 938 (51,0%) of women
compared to 8 878 (35%) of men, while 1 728 (6,8%) divorces were initiated by both
husband and wife. The sex of the plaintiff was not specified in 1 846 (7,3%) cases.
Although women from the black African population had a lower proportion of plaintiffs
(45,1%), the proportion of women plaintiffs from the white, Indian/Asian and coloured
population groups were 58,2%, 56,6% and 56,2% respectively. Among black African
divorcees, 10% of divorces were initiated by both partners.46
The provincial distribution indicates that the Western Cape (6 050), Gauteng (6 046),
KwaZulu-Natal (4 349) and Eastern Cape (3 285) had the highest number of divorces
44
Ibid, p 7.
45
Ibid.
46
Ibid.

42
granted. Together, the four provinces contributed 19 730 (77,7%), or over three-
quarters of the divorces granted in 2017. However, these numbers could also be
because these provinces have the largest populations. Eastern Cape had the largest
proportion of both husband and wife being plaintiffs (14,8%).47
1.2. Number of divorces by way of solemnising marriage
Of the 2017 divorce cases, 11 675 (46%) were from marriages that were solemnised
by religious rites and 11 275 (44,4%) by civil rites. Over two-thirds (68,9%) of divorces
from the white population group and 66% of divorces from the coloured population
group were from marriages solemnised by religious rites. Most divorces from the black
African and Indian/Asian population groups, 66,1% and 52% respectively, were from
marriages that were solemnised by civil rites.48
1.3. Number of times married
More than 80% of divorces for men and women were from first-time marriages
compared to 11,6% of men and 10% of women from second-time marriages. Less
than 2% of men and women were getting divorced for at least the third time.49
1.4. Age at the time of divorce
The median age at the time of divorce in 2017 was 44 years for males and 40 years
for females, indicating that generally, divorced males were older than divorced
females, with a difference of about four years. The pattern of median ages in 2017 by
population group showed that black African males had the highest median age at 45
years, while the Indian/Asian population group recorded the lowest median age for
both sexes. The difference in the median ages at the time of divorce between males
and females was greater in the black African population group (five years) compared
to the coloured, Indian/Asian and white population groups, with median age
differences of three years between males and females.50
47
Ibid, p 6.
48
Ibid.
49
Ibid, p 7.
50
Ibid.

43
There were fewer divorces among the younger (less than 25 years old) and the older
(65 years and older) divorcees; however, divorces started later for black African males
than other population groups and slightly earlier for Indian males at older ages. For
males, the peak age group at divorce was 40 to 44 years for all except the white
population group, where the peak was from the age group 45 to 49 years. In the case
of females, the peak age group for black African and coloured population groups was
35 to 39 years and the peak for Indian/Asian and white population groups was 40 to
44 years.51
The median age of male divorcees increased from 53 years in 2013 to 55 years in
2015, and remained at that level until 2017. In comparison, the median age of female
divorcees remained at 48 years between 2013 and 2015, and thereafter showed an
increase from 48 years in 2015 to 49 years in 2016 and 2017. There was a six-year
age difference in the median ages between male and female divorcees who married
in 2017.52
1.5. Duration of marriage of divorcing couples
Most divorces (6 906 or 27,2%) occurred after between five and nine years of
marriage. This group is followed by 4 985 (19,6%) marriages that lasted between ten
and 14 years and 4 424 (17,4%) marriages that lasted for less than five years. Results
showed that of the 25 390 divorces in 2017, 11 330 (44,6%) or four in ten were of
marriages that had lasted for less than 10 years.53
Irrespective of the population group, the highest proportion of divorces occurred in

couples that had been married for five to nine years. Population group variations
showed that 29,5% of divorces from black African, 26% from white, 24,9% from
coloured and 20,7% from Indian/Asian population groups were from marriages that
lasted between five and nine years. The white population had the highest proportion
(22%) of divorces that occurred in the first five years. The proportion of divorces in all
population groups declined as the duration of marriage increased, with a significant
decline being observed after nine years of marriage. The proportion of divorces from
51
Ibid.
52
Ibid, p 4.
53
Ibid, p 7.

44
Indian/Asian population group is higher than the other population groups between
ages 15 and 34 years.54
1.6. Divorces involving couples with minor dependents
In 2017, 14 121 (55,6%) of the 25 390 couples divorcing had children younger than 18
years while 11 266 (44,4%) had no children. The profile of white divorcees showed
that more than half of the recorded divorces were without children (55,3%). Looking at
the coloured and black African divorcees, divorces involving couples with minor
children constituted about 61,6% and 61% respectively. So, 49,6% of children affected
by divorce were from the black African population group; 20% from the coloured
population group; 18,7% from the white population group and 5% from the
Indian/Asian population group.55
2. Conclusion
In conclusion, the report showed that 25 390 divorces were granted in South Africa in
2017. Generally, there was an increase in the proportion of divorces for black Africans
and a decline for the white population group from 2008 to 2017. Divorces were mainly
from people who had married for the first time. More wives than husbands filed for
divorce, with husbands generally getting divorced at a later age than wives. The
provincial distribution shows that the Western Cape (6 050), Gauteng (6 046),
KwaZulu-Natal (4 349) and the Eastern Cape (3 285) had the highest number of
divorces granted. About 23 170 children aged less than 18 years were affected by
divorces in 2017.56
54
Ibid.
55
Ibid, p 8.
56
Ibid.

45
SECTION 3: POLICY FRAMEWORK AND IMPLEMENTATION STRATEGY
Chapter 6: Policy analysis and options
1. Introduction
South Africa has what is generally referred to as a hybrid or mixed legal system
underpinned by the Roman-Dutch and English common law systems, customary law,
case law and legislation.57 Unsurprisingly, the hybrid nature of the South African legal
system is reflected in the manner in which legislation governing marriages is
configured. As a result, South Africa does not have a harmonised system of marriage;
instead it has parallel systems of marriage that stand side by side.
The preceding chapters showed an in-depth analysis of the deficiencies affecting

marriages in South Africa. Based on feedback from the various ministerial dialogues,
court judgments about the multiplicity of laws governing marriages in South Africa,
various Bills from the legislature and academic material, many deficiencies were
identified in the current legal regime governing marriages. The purpose of this chapter
is to consider policy interventions as remedies to the deficiencies of the current legal
regime governing marriages.
2. Vision statement
The envisaged marriage statute will enable South Africans of all sexual orientations,
and religious and cultural persuasions to conclude legal marriages that accord with
the principles of equality, non-discrimination, human dignity and unity in diversity, as
encapsulated in the Constitution.
In redressing the injustices of the current marriage regime, the new marriage policy
will be underpinned by the provisions of the Bill of Rights enshrined in the Constitution:
57
Rautenbach, Christa, 'Deep Legal Pluralism in South Africa: Judicial Accommodation of Non-State
Law' (2010) 60, Journal of Legal Pluralism and Unofficial Law, 143-177.

46
• Everyone is equal before the law and has the right to equal protection and
benefit of the law (Section 9(1) of the Constitution).
• The State may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth (Section 9(3) of the Constitution).
• Everyone has inherent dignity and the right to have their dignity respected and
protected (Section 10 of the Constitution).
• Everyone has the right to freedom of conscience, religion, thought, belief and
opinion (Section 15(1) of the Constitution).
• Section 15(3) allows the State to enact legislation that recognises marriages
concluded under any tradition or system of religious, personal or family law, or
systems of personal and family law under any tradition, or adhered to by
persons professing a particular religion.
It is important to underline that Section 36 of the Constitution provides for the limitation
of the rights contained in the Bill of Rights only in terms of laws of general application,
to the extent that the limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom. Thus, as the adjudicator of
competing interests, the State is duty bound to balance these competing interests in
an equitable manner.
Accordingly, the State is obliged to craft a marriage policy that respects, protects,
promotes and fulfils the rights in the Bill of Rights. This task ought to be undertaken
with the understanding that the Constitution does not accord hierarchical precedence
to any particular right over any other rights entrenched in the Bill of Rights. While the
DHA has received various competing submissions during the ministerial dialogues, it
cannot accommodate all submissions in the new marriage policy since some views
infringe on the rights of other people. For this reason, the effort of the State to equitably
balance the interests of all people who live in South Africa must be observable in all
the policy options and remedies.

47
3. Foundational policy principles
All marriages concluded in South Africa, irrespective of race, gender, sex orientation,
religion and cultural beliefs, will have to comply with the following foundational
principles:
• Realisation of equality for all constitutionally sound marriages irrespective of

race, culture, socio-economic status and religious persuasion.
• Realisation of non-discrimination in all constitutionally sound marriages
irrespective of race, culture, socio-economic status and religious persuasion.
• Realisation of human dignity for all people in constitutionally sound marriages
irrespective of race, culture, socio-economic status and religious persuasion.
• Promotion of acceptance, tolerance and unity in diversity among all people in
constitutionally sound marriages irrespective of race, culture, socio-economic
status and religious persuasion.
• Protection of women’s rights irrespective of race, culture, socio-economic
• Protection of children’s rights irrespective of race, culture, socio-economic
• Protection of gender diversity irrespective of sexual orientation.
• Protection and equal treatment of all recognised cultural and religious rights.
• Separation of religious and cultural rites and the State’s functions.
• Marriage is a legally binding agreement entered into between two or more living
human beings with a legal capacity to consent. However, marriages may be
registered by the State posthumously.
4. Policy options and remedies
4.1. Inclusiveness of the marriage statute
This paper has demonstrated that, despite the efforts of the State to redress the
injustices of the past, the current marriage statute still deprives certain cultural and
religious communities from concluding legally recognised marriages. This includes
Islamic and Hindu marriages, and marriages in some African communities such as the
KhoiSan. The key distinctive nature of these marriages is summarised below:

48
• Islamic marriages that are polygamous in nature cannot be concluded under

the current marriage legislation, which is the Recognition of Customary
Marriages Act.
• Islamic marriages are automatically out of community of property. When such
marriages are dissolved either by death or divorce, women and children suffer
the consequence since they are not protected by the marriage law. The divorce
process is concluded through religious and not court processes.
• KhoiSan marriages that are polygamous in nature cannot be concluded under
the current marriage legislation, which is the Recognition of Customary
Marriages Act.
• Divorce in Hindu marriages is a taboo, which leaves women in limbo when the
man decides to leave the family. What complicates the situation is that such
marriages are not protected by the law.
• Customary marriages that involve foreign nationals are not protected by the
Recognition of Customary Marriages Act.
In view of the above exclusionary conditions as well as the recognition of the principle
of the protection and equitable treatment of all recognised cultural and religious rights,
the following remedies should be considered:
Option 1: Inclusive customary and religious marriage regime
• The Recognition of Customary Marriages Act could be amended to cater for all
polygamous marriages irrespective of race, cultural and religious persuasions.
Option 2: Religion and culture-neutral marriage regime
• South Africa could do away with categorising marriages along racial, religious
and cultural lines. That means South Africa will adopt a dual system of either
monogamous or polygamous marriages. Monogamous marriages will either be
homogeneous or heterogeneous.
Option 3: Gender neutral marriage regime
• South Africa could do away with categorising marriages along lines of race,
sexual orientation, religion and culture. That means South Africa will still adopt
a dual system of either monogamous or polygamous marriages as in option 2.

49
The difference between options 2 and 3 is that this option is gender neutral.
Therefore all marriages, whether monogamous or polygamous, could be
concluded regardless of the sex or sexual orientation of the person. This would
accommodate both polygyny and polyandry.
The political appetite of the country to confront the challenges of the current marriage
statute will be tested through these options. However, if Section 9 of the Constitution
was to be implemented in its entirety, option 3 will tick all the boxes. It must be noted
that all options are not limited to citizens but also accommodate marriages concluded
with foreign nationals.
4.2. Unrecognised customary marriages
The problem addressed by this intervention
The current marriage statute does not recognise certain customary marriages
concluded in some African communities, including royal families. The following options
are proposed for the recognition of customary marriages that are practiced in some
African communities, including royal families.
Option 1: Recognition of principal and supporting wives for royal families
• The Marriage legislation may recognise the royal family tradition of designating
a woman that is chosen by the royal family as a principal wife.58
• A supporting wife59 (from the family or relatives of the principal wife) may
be recognised by law since it is a practice in royal families. However, proper
adoption processes must be followed with regards to the registration of children
born by the supporting wife.
Option 2: Recognition of principal and supporting wives for all polygamous marriages
• The Marriage legislation may extend the tradition of designating a woman as a

principal wife to all other polygamous marriages.
58
This is a woman that is selected by the nation and married to the king for the sole purpose of
giving birth to a male child – future king.
59
This is a woman that married to give birth to an heir on behalf of the queen in the event that the
queen is unable to give birth to a future king.

50
• A supporting wife may be recognised by law for all polygamous marriages.
4.3. Design of the new marriage legislation
The design of the new legislation is directly linked to the preceding subsection that
deals with the inclusiveness of the marriage regime. The design will also test the
principle of acceptance, tolerance and unity in diversity among the people who live in
South Africa.
Generally, all laws in force immediately before the commencement of the Constitution,
in any area that forms part of South Africa’s national territory, continues to be in force
subject to the Constitution, or their repeal or amendment by a competent authority.60
The democratic government seemed to embark on a piecemeal repeal of the apartheid
government’s legislation rather than wholesale changes to the country’s laws. This
has led, as demonstrated in this paper, to a situation where discriminatory legislation
of a bygone era continues to cast a shadow over South Africa’s marriage legislation.
Option 1: Single Marriage Act
It has not been uncommon for the democratic government to pass legislation that
seeks to unify different laws. For instance, in 1996 the Justice Laws Rationalisation
Act 18 of 1996 was passed. This Act provided for uniform laws regarding judicial
matters throughout South Africa. It made the laws on judicial matters that were in force
in the area of the former Republic of South Africa, applicable throughout the national
territory. It also repealed laws on judicial matters that were in force in the former TBVC
states and self-governing territories. Unifying the law in this context entails completely
replacing different legal systems with one uniform legal system.61
The difficulty with this approach is that it may have the unintended consequence of
harmonising irreconcilable legal systems. It is doubtful whether this approach would
pass constitutional muster. Secondly, this approach could also have the unintended
consequence of bringing about cultural and religious discrimination. Consequently, a
60
S v Makwanyane and Another 1995 (6) BCLR 665 para 28.
61
South African Law Reform Commission, Project 144 Single Marriage Statute, p14. Also see
Prinsloo 1990 XXIII CILSA 324 – 336 at 325; Rautenbach C ‘South African common and
customary law of intestate succession: a question of harmonisation, integration or abolition’ (2008)
Electronic Journal of Comparative Law at 6.

51
single Marriage Act that unifies a set of requirements and consequences applying to
all marriages may not be suitable for the country’s mixed legal system and might not
pass constitutional muster.
Option 2: Omnibus or umbrella Marriage Act
Harmonising the existing marriage legislation aims to remedy and eliminate conflicts
between different legal systems, although they will be allowed their distinct recognition
and continuation.62 This approach is consistent with the principle of reasonable
accommodation, which requires an exercise in proportionality that ultimately depends
on the facts. This approach also seeks to ensure that the often conflicting gender,
religious and cultural rights are able to coexist.
The omnibus legislation is a single Act that contains different chapters to reflect the
current diverse set of legal requirements for civil marriages, civil unions, customary
marriages and other marriages that are not accommodated by the legislation.
However, the limitations of the current marriage legislation will not be incorporated in
the new Act. That means all legal provisions will be tested against the key principles
of the marriage policy derived from the Bill of Rights.
Option 3: Parallel Marriage Acts
The retention of the status quo is also an option that requires consideration. Although
this option would generally be suitable for the country’s mixed legal system, retaining
the status quo would not be consistent with the transformative nature of the country’s
Constitution. Furthermore, this would require the amendment of various interlinked
legislation and the promulgation of new legislation to govern a variety of religious and
cultural marriages that are excluded by the current legal regime.
4.4. Solemnising marriages
Currently a marriage officer who is a minister of religion or a person holding a

responsible position in a religious denomination or organisation may refuse to
solemnise a marriage that would not conform to the rites, formularies, tenets, doctrines
or discipline of his or her religious denomination or organisation. This provision
62
Ibid, p15. Also see Prinsloo, op cit; Rautenbach C, op cit, at 235.

52
extends to government employees who are required to inform the minister in writing
should they be unwilling to solemnise same-sex unions. This provision appears to be
subjective and tends to lend itself to discriminatory behaviour. To align the marriage
statute with Section 9 of the Constitution, the following remedies are recommended:
Option 1: Non-discriminative solemnisation of marriages
Marriage officers assume these positions voluntarily. In doing so, they perform a public
function and not a cultural or religious function. This is an important distinction. In
choosing to accept the position as a marriage officer and its corresponding
responsibilities, the officer will not be permitted to refuse to perform his or her duties
on these grounds. As a matter of policy, marriage officers must therefore serve all
members of the public who wish to marry, without exception. This option embeds the
principle for separation of cultural and religious rites from the State function. However,
the challenge for this option is with Section 15 of the Constitution, which provides for
grounds of refusal on the basis of conscience, religion, thought, belief and opinion.
Option 2: Non-discriminative solemnisation of marriages by public servants
Recognising the constitutional challenges of making it compulsory for non-State

marriage officers to solemnise all marriages, the State could limit the application of the
non-discriminative solemnisation provision to public servants. That is, only marriage
officers who are government employees must serve all members of the public who
wish to marry, without exception. This principle is applicable to all identity and status
(civil registration) services that departments provide to the people of South Africa. At
no stage can an employee of the State refuse to, for instance register a birth, marriage
and death, on the basis of Section 15 of the Constitution.
In order to accommodate those government employees who will feel that their rights
will be infringed by this provision, the solemnisation of marriages must be as gender,
culture and religion neutral as possible. This could mean marriage officers will not
perform the ceremonial part of the marriage, which requires people to express their
love for each other. In fact, the ceremonial part of the marriage is not a State, but a
religious or cultural function.
Option 3: Broadening the scope for the designation of marriage officers

53
Section 9(3) of the Constitution provides that the State may not unfairly discriminate,
directly or indirectly, against anyone on one or more grounds including race, gender,
sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth.
In keeping with Section 9(3) while not infringing on the rights of those that are protected
by Section 15(1) of the Constitution, the policy must make provision for all social
groups to apply to be designated as marriage officers. In that way, the policy will cater
for the competing interests of all social groups. This option does not absolve public
servants from the solemnising all marriages.
All marriage officers must meet the requirements, which could include the following:
• Passing a mandatory examination

• Being a citizen or a permanent resident
• Obtaining a required security clearance, etc.
Option 4: Solemnising marriages without marriage officers
Recognising the constitutional principles of equality and non-discrimination and the

objective of ensuring that marriage is as gender, culture and religion neutral as
possible, another option could be to solemnise marriages without the intervention of a
marriage officer. In this option, the marriage officer would not perform any of the
ceremonial functions generally associated with marriage.
Marriage parties would be required to approach the DHA to officially register their
marriage after the ceremonial component has been concluded. Under these
circumstances the government employee’s function would be administrative in nature,
akin to the registration of birth or any other analogous administrative function. The
marriage would therefore only be registered if certain stipulated requirements are met.
This option could ameliorate any unintended discriminatory consequences of the first
three options.
4.5. Marriages that involve couples who are regarded as minors
The existing legislation makes provision for the marriage of minors provided that the
legally required consent has been granted and submitted to the marriage officer in
writing. As indicated in chapter 4 of this paper, in 2017 the civil marriages were

54
registered of 2 bridegrooms and 70 brides that were less than 18 years old, with 62 of
these brides marrying for the first time. A further 8 bridegrooms and 77 brides who
were younger than 18 years were registered in customary marriages. These figures
demonstrate that girls are disproportionately affected by child marriages compared to
boys. This practice is contrary to the country’s constitutional, international and regional
obligations, which aim to protect children and to act in their best interests.
The Children's Act 38 of 2005 already has already legislated 18 years as the age of
majority. South Africa has also signed the SADC Protocol on Gender and
Development, which states that ‘no person under the age of 18 shall marry, unless
otherwise specified by law, which takes into account the best interests and welfare of
the child.’
During the ministerial dialogues, all stakeholders discouraged the marriage of minors
and recommended that, as a matter of principle, laws that permit child marriage should
be repealed without exception. Therefore, the legal capacity for entering into a
marriage contract will be 18 years. Given the vulnerability of children, criminal
sanctions shall be visited upon those who facilitate child marriages and those who
marry children.
4.6. Transitional mechanisms for sex alteration
The existing legislation does not provide a transitional mechanism for persons who
initially married under the provisions of the Marriage Act but who subsequently
undergo a sex change. Requiring persons who have undergone sex alteration to
obtain a divorce and thereafter remarry under the Civil Union Act infringes on their
rights to non-discrimination and human dignity. Therefore, as a matter of policy there
shall be transitional mechanisms for persons who undergo sex alteration. This
requirement might fall off if an omnibus legislation that is gender neutral is adopted.
4.7. Registration of customary marriages
Although the Recognition of Customary Marriages Act provides for the registration of
customary marriages, it is not compulsory for the marriage to be registered. In other
words, failure to register a customary marriage does not affect its validity. This
generally leaves women and children vulnerable. The vulnerability is amplified when
the existence of such a marriage is contested during divorce or when either of the

55
spouses passes away. This also has an impact on the proprietary consequences of
the marriage.
Many customary marriages are not registered simply because DHA offices are a
distance away and awareness among poor and rural communities is at a low level. To
a certain extent, this explains the low registration rate of customary marriages per
annum. For instance, 2 588 customary marriages were registered in 2017 while
135 458 civil marriages were registered. The Traditional Leadership and Governance
Framework Act provides for traditional councils to be established and recognised. This
is in line with sections 211 and 212 of the Constitution. Traditional councils are officially
recognised as the traditional leadership of the traditional communities that they serve
by statute to perform certain public functions in accordance with the Constitution. As
such, traditional councils are organs of State, with the authority and power devolved
upon them from the Constitution itself.63 However, the Recognition of Customary
Marriages Act does not envisage a role for traditional councils in the registration
process of customary marriages. Involving traditional councils in this registration
process could have advantages because of their authority and proximity to the
communities that they serve. In this way the DHA’s role in the registration process of
customary marriages will be augmented by traditional councils.
To curb the fraudulent registration of customary marriages, the legislation must make
it compulsory for the spouses to appear before the registration authority. The provision
that allows one partner to register a marriage should only apply when the marriage is
registered posthumously; that is, if the other partner is deceased.
4.8. Solemnisation and registration of marriages that involve foreign nationals
The process for solemnising marriages and civil unions that involve foreign nationals
is complicated. Prior to solemnising a marriage that involves a foreign national, the
marriage officer must confirm the following:
• The validity of the passport and visa/permit

• Letter of non-impediment that confirms that the person is not married
63
Pilane and Another v Pilane and Another 2013 (4) BCLR 431 (CC) para 44.

56
• Immigration marriage interview report.
This process has proven to be daunting for religious marriage officers who find it
almost impossible to verify the authenticity of the required documents. As a result,
some marriages are fraudulently solemnised as fake documents were submitted. As
part of the strategy for curbing fraudulent marriages, marriages that involve foreign
nationals will only be solemnised by DHA officials. This will also improve the amount
of time it takes to conclude such marriages.
4.9. Customary marriage with non-citizens
The Recognition of Customary Marriages Act does not make provision for entering
into a customary marriage with non-citizens. This poses a challenge for people
entering such marriages, especially where the persons are members of the same clan
but are separated by a borderline. Customary marriage swith non-citizens will be
legally permissible, whether within the borders of the country or not, provided that the
marriage is entered into in compliance with the provisions of the law in South Africa.
4.10. Black civil marriages before 1988
The provisions of Section 21(2) of the Matrimonial Property Act are unconstitutional
and invalid to the extent that they maintain and perpetuate the discrimination created
by Section 22(6) of the Black Administration Act. In these cases, the marriages of black
people entered into under the Black Administration Act prior to 1988, are automatically
out of community of property. The discrimination against black persons married before
1988 constitutes an inequality that inhibits the enjoyment and exercise of the
constitutional rights of a large number of black women in the country. Section 22(6) of
the Black Administration Act denied thousands of black women the protection afforded
by a marriage in community of property. This section also exacerbated their
vulnerability and rendered them entirely dependent on the goodwill of their husbands
who generally control the vast majority of the family’s wealth and assets.64
Civil marriages of black persons that were entered into before 1988 will be brought on
par with other marriages. However, going forward no marriage regimes should be
64
Sithole & Others vs Sithole & Another Case No: D12515/2018 para 53.

57
regarded as a default position. All couples must be provided with an opportunity to

knowingly elect a particular marriage regime.
4.11. Proprietary consequences of polygamous marriages
Section 7(1) of the Recognition of Customary Marriages Act provides that the
proprietary consequences of customary marriages entered into before the Act
commenced continue to be governed by customary law. While section 7(2) provides
that customary marriages entered to after the commencement of this Act are
marriages in community of property. The differential treatment raised by sections 7(1)
and 7(2) is unconstitutional as it unjustifiably limits the right to human dignity and the
right not to be unfairly discriminated against. All polygamous marriages shall be
governed by the same law.
4.12. Premarital counselling
Premarital counselling is a form of therapy that helps couples prepare for marriage. It
is said that by participating in premarital counselling prior to marriage, couples can
begin to build a healthy, strong relationship that helps provide a healthier foundation
for their union. Premarital counselling can help couples of any gender, race, or religion
identify and address potential areas of conflict in their relationship.65
Given its recognised societal benefit, reasonable measures such as premarital

counselling should be taken to ensure that the institution of marriage is supported.
Over and above encouraging premarital counselling, persons who wish to marry shall
be required to undergo prescribed premarital counselling sessions prior to marriage.
To ensure compliance to this requirement, persons who wish to marry shall be
required to furnish the marriage officer with written proof that they have indeed
undergone premarital counselling. A standard form affidavit shall be provided by the
DHA for these purposes. Premarital counselling must include explaining to couples
the various marriage regimes and their implications.
65
https://careersinpsychology.org/premarital-counseling/

58
Chapter 7: High-level implementation strategy
1. Introduction
No system of law can remain static. Indeed, it is desirable and essential that the law
be constantly revised for it to remain abreast of constitutional and societal
requirements.66 Given the policy shortcomings of the current marriage legislation, this
Marriage Policy Paper argues that South Africa needs to adopt a new policy paradigm
grounded in constitutional values. Successfully implementing this policy will depend
on establishing a responsive interdepartmental institutional framework. The framework
must foster strong adherence to sections 41 and 195 of the Constitution.
2. Principles of co-operative government and intergovernmental relations
Section 41(1) of the Constitution requires that all spheres of government and all organs
of State within each sphere must:
• preserve the peace, national unity and the indivisibility of the Republic
• secure the well-being of the people of the Republic
• provide effective, transparent, accountable and coherent government for the
Republic as a whole
• be loyal to the Constitution, the Republic and its people
• respect the constitutional status, institutions, powers and functions of
government in the other spheres
• not assume any power or function except those conferred on them in terms of
the Constitution
• exercise their powers and perform their functions in a manner that does not
encroach on the geographical, functional or institutional integrity of government
in another sphere
• co-operate with one another in mutual trust and good faith by –
66
Fortieth annual report of the South African Law Reform Commission (2012/2013) p7 available at
https://www.justice.gov.za/salrc/anr/2012-2013-anr-salrc.pdf

59
o fostering friendly relations

o assisting and supporting one another
o informing one another of, and consulting one another on, matters of
common interest
o co-ordinating their actions and legislation with one another
o adhering to agreed procedures
o avoiding legal proceedings against one another.
This policy paper has demonstrated that the marriage statute is one of the few
legislations that constitute the family law and have an impact on the structure of
families in SA. The interconnected nature of family law necessitates a well-crafted
strategy that enables the State to comply with Section 41 of the Constitution. The
departments that administer legislation that has an impact on marriages and on the
family structure are outlined below.
• Department of Justice and Constitutional Development is responsible for the

following relevant legislation:
o Intestate Succession Act 81 of 1987
o Wills Act 7 of 1953
o Maintenance of Surviving Spouses Act 27 of 1990
o Divorce Act 70 of 1979
o Matrimonial Affairs Act 37 of 1953.
• Department of Traditional Affairs is responsible for the following relevant
legislation:
o The Traditional Leadership and Governance Framework Act 41 of 2003
o Intergovernmental Relations Framework Act 13 of 2005.
• Department of Social Development is responsible for the following relevant
legislation:
o Children's Act 38 of 2005.
• Department of Women, Youth and Persons with Disabilities is responsible for
the following relevant legislation:
o SADC Gender and Development Protocol
• DHA is responsible for the following relevant legislation:
o The Marriage Act 25 of 1961

60
o The Recognition of Customary Marriages Act 120 of 1998

o The Civil Union Act 17 of 2006.
The marriage policy can only be implemented through a ‘whole of government and
whole of society approach’. Thus, the adoption of this approach to implement this
marriage policy and, subsequently, marriage legislation will enable the State to, among
others, provide effective, transparent, accountable and coherent government for South
Africa as a whole.
3. Public administration principles
Section 195 of the Constitution outlines basic values and principles that must govern
public administration. The administration of the marriage legislation must, therefore,
comply with the following provisions of Section 195:
• A high standard of professional ethics must be promoted and maintained

• Efficient, economic and effective use of resources must be promoted
• Public administration must be development-oriented
• Services must be provided impartially, fairly, equitably and without bias
• People’s needs must be responded to, and the public must be encouraged to
participate in policymaking
• Public administration must be accountable
• Transparency must be fostered by providing the public with timely, accessible
and accurate information.
A world founded on these principles is one where – as the Freedom Charter envisaged
– ‘The rights of the people shall be the same, regardless of race, colour or sex’. This
Green Paper is based on desktop research, interviews and discussions with internal
and external stakeholders (workshops, and dialogues). It is also informed by a
practical knowledge of problems that have emerged since the publication of the
Marriage Act 25 of 1961.

61
4. High-level implementation plan
The new Marriage Act will enable South Africans of different sexual orientation, and
religious and cultural persuasions to conclude legal marriages that align to the doctrine
of equality as encapsulated in the Constitution of the Republic of South Africa. The
critical milestones towards implementing the new marriage policy and legislation
includes the following activities:
• Submit the draft marriage policy to the minister for approval by

30 November 2020
• Host a virtual interministerial roundtable by 30 November 2020
• Submit the draft marriage policy to the Justice, Crime Prevention and Security,
Governance State Capacity and Institutional Development, and Social clusters
for recommendation to Cabinet by 30 December 2020
• Submit the draft marriage policy to Cabinet to request approval for public
consultation by 31 December 2020
• Gazette the draft marriage policy for public comments by 31 March 2021
• Submit the marriage policy to Cabinet for approval by 31 September 2021
• Submit the Marriage Bill to Cabinet for approval by 31 March 2022
• Submit of the Marriage Bill to Parliament for approval by 31 March 2023.
The outcome of the Parliamentary process on the Civil Union Amendment Bill and
other court judgments will be considered during the development of the new marriage
policy and legislation.

62
ANNEXURE 1: INTERSECTIONALITY OF FAMILY LAW
Marriage regimes in South Africa
1. Introduction
The purpose of this annexure is to set out the marriage regimes applicable in South
Africa in terms of the Matrimonial Property Act 88 of 1984 and other relevant legislative
provisions. In doing so, this subsection also addresses the consequences of the
respective marriage regimes. There are essentially two matrimonial dispensations in
South Africa: marriages in and marriages out of community of property. They differ
substantially from one another.67
2. Marriage in community of property
Marriage in community of property is the default marital regime in South Africa. If

persons marry without an antenuptial contract they are automatically married in
community of property. The estates of the spouses are joined upon marriage and each
spouse has an equal share in the joint estate, both spouses have assets and liabilities.
Upon dissolution of the marriage the estate will be divided equally among the spouses.
A person in a marriage in community of property has the same powers with regard to
the disposal of assets of the joint estate, contracting debts that lie against the joint
estate and the management of the joint estate.
A spouse shall not, without the written consent of the other spouse:
• alienate, mortgage, burden with a servitude or confer any other real right in any
immovable property forming part of the joint estate
67
JA Robinson, Matrimonial property regimes and damages: the far reaches of the South African
Constitution, PER/PELJ, 2007(10)3.

63
• enter into any contract for the alienation, mortgaging, burdening with a servitude
or conferring of any other real right in immovable property forming part of the
joint estate
• alienate, cede or pledge any shares, stock, debentures, debenture bonds,
insurance policies, mortgage bonds, fixed deposits or any similar assets, or any
investment by or on behalf of the other spouse in a financial institution, forming
part of the joint estate
• alienate or pledge any jewelry, coins, stamps, paintings or any other assets
forming part of the joint estate and held mainly as investments
• withdraw money held in the name of the other spouse in any account in a
banking institution, a building society or the Post Office Savings Bank of the
Republic of South Africa
• enter, as a consumer, into a credit agreement to which the provisions of the
National Credit Act, 2005 apply, as ‘consumer’ and ‘credit agreement’ are
respectively defined in that Act, but this paragraph does not require the written
consent of a spouse before incurring each successive charge under a credit
facility, as defined in that Act
• as a purchaser enter into a contract as defined in the Alienation of Land Act 68
of 1981, and to which the provisions of that Act apply; bind himself as surety.
It is worthy to note that Section 13 of the Civil Union Act expressly states that civil
unions carry the same consequences as marriages entered into in terms of the
Marriages Act 25 of 1961. This means that the marital regimes are fully applicable to
civil unions.
3. Marriage out of community of property
Should parties conclude an antenuptial contract before marriage, the default regime
will be out of community of property with accrual, unless expressly excluded in the
antenuptial contract. When parties are married out of community of property, each
party keeps their separate estate; however, each party has an equal share in the
growth of each spouse’s estate at the end of the marriage. Section 4(1)(a) defines
accrual as the amount by which the net value of a spouse’s estate at the dissolution
of the marriage exceeds the net value of the estate at the commencement of that

64
marriage.68 When determining the value of the accrual, any amount that accrued to
the spouse’s estate by way of damages, other than patrimonial damages, are excluded
from the account.69 The accrual of the estate of a deceased spouse is determined
before any testamentary disposition is given effect.70 The following are not taken into
account when determining the accrual:
• Any asset excluded from the accrual system under the antenuptial contract, as
well as any other asset that the spouse acquired by virtue of his/her possession
or former possession of such asset.
• Any inheritance, legacy, trust or donation received by a spouse during the
marriage from any third party.
• Any other asset that the spouse has acquired by virtue of his/her possession or
former possession of the inheritance, legacy, trust or donation, unless the
spouses have agreed otherwise in their antenuptial contract or the testator or
donor has stipulated otherwise.
• Any donation between the spouses.
• Any amount that accrued to a spouse by way of damages, other than damages
for patrimonial loss or the proceeds of an insurance policy in respect of a dread
disease.71
4. Marriage out of community of property with accrual
When parties marry out of community of property without the accrual, the parties must
have entered into a valid antenuptial contract and must have expressly excluded
accrual.72 Under this marital regime each spouse keeps the assets that they acquired
before the marriage and the assets and liabilities they acquire during the subsistence
of the marriage. Prior to 1 November 1984 parties only had an option to either marry
in community of property or out of community of property with no option of accrual. At
68
Ibid s4(1)(a).
69
Ibid s4(1)(b).
70
Ibid s4(2).
71
Ibid ss4(1)(b) and s5.
72
Ibid s2.

65
the dissolution of a marriage concluded before 1 November 1984, the court, at its own
discretion, could order a redistribution of assets if the spouse seeking the order was
able to prove that they directly or indirectly contributed to the maintenance or the
increase of their spouse’s estate.73
73
Divorce Act 70 of 1979 s7(3)(a).

66
Legal consequences of marriage
1. Introduction
This subsection discusses the legal consequences of marriage in South Africa,

considering the various relevant statutes. Marriage, like any other legal contract,
comes with legal consequences for the parties entering into the marriage.
Section 13(2)(b) of the Civil Union Act states that the words ‘husband’, ‘wife’ or
‘spouse’ in any other legislation shall include a civil union partner. The legal
consequences discussed here are therefore fully applicable to civil unions. Section
7(2) of the Recognition of Customary Marriages Act states that monogamous
customary marriages carry the same consequences as civil marriages and the legal
consequences are applicable. There are, however, instances where the legislation
may not apply fully to customary marriages. Such instances are discussed below.
2. Intestate Succession Act 81 of 1987
The Intestate Succession Act governs how the estate of a person who dies without
having executed a will devolves. In accordance with Section 1(1)(a) of the Intestate
Succession Act, where a deceased person who dies intestate is survived by a spouse
(surviving spouse) and no descendants, the surviving spouse shall inherit the entire
deceased estate.74 In the instance where the deceased spouse is survived by a
spouse and descendants, the surviving spouse shall inherit a child share in the estate
or an amount set by the Minister of Justice in the Government Gazette, whichever is
greater.75 The amount is currently set at R125 000,00. The surviving spouse is entitled
to this share regardless of the marital regime. If the spouses were married in
community of property the joint estate will first be divided by half before the child share
is calculated in terms of Section 1(1)(c)(i).
74
Intestate Succession Act s1(1)(a).
75
Ibid s1(1)(c)(i).



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Government Notices • Goewermentskennisgewings

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Government Notices • Goewermentskennisgewings

DEPARTMENT OF HOME AFFAIRS

NO. 398 4 May 2021

GREEN PF rlE.'a ICRGA ii EOLITH :TWA

Interested persons and organisations are invited to submit any substantive

Tel: 012 406 4352

DR,`l`'A !JOTS() = LEDI, MP

This gazette is also available free online at www.gpwonline.co.za

GREEN PAPER1 ON MARRIAGES IN

PUBLIC CONSULTATION VERSION

This gazette is also available free online at www.gpwonline.co.za

SECTION 1: POLICY OVERVIEW .............................................................................. 9

Chapter 1: Marriage policy context .......................................................................... 9

1. Overview of the Home Affairs mandate ......................................................... 9

2. Purpose of the marriage policy (Green Paper) .............................................. 9

3. Problem statement ....................................................................................... 10

4. Scope of the marriage policy (Green Paper) ............................................... 11

5. Overview of the policy chapters ................................................................... 12

6. Research methodology ................................................................................ 13

Chapter 2: Understanding marriage in the South African context.......................... 15

2. Constitutional provisions for the marriage policy ......................................... 15

3. Perspectives on family and marriage ........................................................... 18

4. Concluding observations .............................................................................. 25

Chapter 3: Overview of the marriage legal framework and analysis...................... 27

2. Overview of marriage legislation .................................................................. 27

SECTION 2: STATISTICS ON MARRIAGES AND DIVORCES ............................... 35

Chapter 4: Statistics on marriage........................................................................... 35

2. Civil marriages ............................................................................................. 35

3. Customary marriages ................................................................................... 38

4. Civil unions ................................................................................................... 39

GREEN PAPER ON MARRIAGES: PUBLIC CONSULTATION VERSION – APRIL 2021

This gazette is also available free online at www.gpwonline.co.za

Chapter 5: Statistics on divorce ............................................................................. 41

1. Trends in divorce (2008 – 2017) .................................................................. 41

SECTION 3: POLICY FRAMEWORK AND IMPLEMENTATION STRATEGY ......... 45

Chapter 6: Policy analysis and options .................................................................. 45

2. Vision statement .......................................................................................... 45

3. Foundational policy principles ...................................................................... 47

4. Policy options and remedies ........................................................................ 47

Chapter 7: High-level implementation strategy ...................................................... 58

2. Principles of co-operative government and intergovernmental relations ..... 58

3. Public administration principles .................................................................... 60

4. High-level implementation plan .................................................................... 61

ANNEXURE 1: INTERSECTIONALITY OF FAMILY LAW ........................................ 62

Marriage regimes in South Africa........................................................................... 62

2. Marriage in community of property .............................................................. 62

3. Marriage out of community of property ........................................................ 63

4. Marriage out of community of property with accrual .................................... 64

Legal consequences of marriage ........................................................................... 66

2. Intestate Succession Act 81 of 1987 ............................................................ 66

3. Wills Act 7 of 1953 ....................................................................................... 67

4. Maintenance of Surviving Spouses Act 27 of 1990 ..................................... 68

NO. 398 4 May 2021