T.K. Consultancy

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Basic Legal Education Blitz
#1: Summarized Changes of the New Marriages Act

• The law brings all marriage laws together, makes all marriages equal and provides a way to transform a registered customary union into a civil marriage. Prior to this the Civil marriages were governed by the Marriages Act and the customary law marriages were governed by the Customary Marriages Act.

• This Act unifies all these separate pieces of legislation and combines them into one Act.
The Marriages Act recognises all marriages as equal, with a single register of marriages maintained by a single Registrar of Marriages. However, there are distinct differences between civil marriages and customary marriages.

• The main difference between the two kinds of marriages is that men customarily married can have several wives, while those choosing a civil marriage cannot. There are also different ways of solemnising these marriages. Besides civil marriages and customary marriages, there is a civil partnership. This is the informal living together of a couple on a genuine domestic basis but without any marriage whatsoever.

• The new Act states that any property or assets acquired during the partnership will be distributed in the same way that property is distributed when a married couple divorces, using the same law.

• The law also bans and criminalize child marriages, with those arranging or solemnising such marriages facing five years in jail. In all marriages and civil partnerships, both partners have to be aged 18 or over and there has to be explicit agreement by both partners. Underage marriages and forced marriages will result in those involved, except the child or the forced partner, facing criminal charges and jail terms of up to five years.

• The Bill provides a positive step towards domesticating these international standards. It shows progress in the recognition of gender equality, protection of the best interests of the child, recognition of consent in marriage as paramount and the recognition of the right to culture to the extent that these provisions are aligned to the Constitution.

• The new amendments allow marriage officers, who include traditional leaders solemnising customary unions in their own areas to ask parties to a marriage whether or not lobola has been paid.

• The amendments also provide that a marriage officer in a customary union cannot solemnise unions where couples had stayed together for less than five years.

• Under unregistered customary law unions, the amendments make it clear that a marriage officer to a proposed customary union can include questions about lobola among those required for establishing the identity and ages of the couple.

• In these solemnisations of unregistered customary unions, the couples have to present an affidavit jointly sworn to by them to the effect that they have been living together as husband and wife for at least five years or more, and that they are not related to each other within any prohibited degree of kinship that is recognised by their community as an impediment to marriage between them.

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