A Single Marriage Statute?

By Sethabile Sithole, Durban intern

Our country is one that has people from diverse cultures and backgrounds. This is evident in the existence of legal pluralism that exists in our legal system. This is discernable in the judicial accommodation of non-state law when it comes to religious marriages. Though not recognised under South African law, the courts have extended a piecemeal recognition of religious marriages, although this recognition still casts a shadow of uncertainty on the parties to these marriages. For this reason parties have entered into both civil and religious marriages.

The South African Law Reform Commission (“the Commission”) seeks input on whether existing laws should be reshaped into a single marriage statute and, if so, how. There are currently three laws in which the three types of marriages recognised in South Africa are governed, viz., the Marriage Act of 1961, the Recognition of Customary Marriages Act of 1998 and the Civil Union Act of 2006.

One of the primary questions from the Commission is whether they should create a single statute that is all inclusive and has consequences applying to all types of marriages, or an omnibus statute which has different chapters regulating the different types of marriages. If the former is to be adopted, the question is what about the requirements which are unique and only exist in one type of marriage and not the other? Some examples would be the payment of a bride-price or the marriage being conducted by a marriage officer. In such cases, would we have to do away with such requirements or apply them across the board?

The Commission Issue Paper 35 on Single Marriage Statute is available on its website at www.justice.gov.za/salrc
and it is open for comments on any of the issues contained in the issue paper. For those who are interested in making comments, an extension has been given until 31 August 2019. Workshops will also be held in the various provinces in due course. In addition, a consolidated questionnaire will be available in all nine official languages. The commission is liaising with the Council for the Blind to have the questionnaire available in braille as well.

 

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