OP-ED: One word could sink it: what South Africa's new marriage law must get right
One word could sink it: what South Africa's new marriage law must get right
South Africa is closer than it has ever been to a single, unified marriage law. The Marriage Bill [B43-2023], now before the Portfolio Committee on Home Affairs, promises something our fragmented system has never quite managed: equal legal recognition and dignity for every valid marriage, including religious and customary marriages that were previously unrecognised or only partly recognised. For the many spouses and children left legally exposed on the death of a partner or the breakdown of a union, that represents real progress and a significant improvement.
However, the Bill's progress has recently slowed. The Committee has been grappling with an unresolved constitutional question concerning clause 6, which addresses consent in further polygamous customary marriages, particularly where royal families and traditional leadership succession are involved. The Department of Home Affairs (DHA) and the Department of Cooperative Governance and Traditional Affairs (COGTA) argue that the clause must account for the implications for customary law succession. Parliamentary Legal Services and the Office of the Chief State Law Advisor have raised constitutional concerns, pointing to the Constitutional Court's decision in Mayelane v Ngwenyama, which addressed the need for the consent of an existing wife to a subsequent customary marriage. These conflicting legal and policy positions remain before the Committee, and some members have indicated they want further legal guidance before taking a final view. It is a serious question, and it is right that it be worked through carefully.
A pause of this kind is not wasted time. It is an opportunity to make sure the rest of the Bill is drafted as carefully as the process to reconfigure and align South Africa’s marriage laws originally promised. And there is one drafting question, quieter than clause 6 but no less important, that deserves attention now.
The Bill currently uses the word "solemnise" as though it described a single, neutral administrative act. In ordinary use, the word carries more than that, encompassing the ceremony, the rites and the celebration through which a couple and their community give meaning to a marriage. That is where the difficulty begins, because in practice a marriage has two distinct moments that the law tends to blur into one. The first is the legal act: the State satisfies itself that the requirements for a valid marriage are met, then records and registers it. The second is the ceremony, whether religious, cultural or secular, through which the union is celebrated. The legal act is a public function the State owes to everyone; the ceremony belongs to the couple and their community.
The DHA’s own White Paper on Marriages in South Africa recognised this distinction. It was emphatic that State officials must provide marriage services to everyone and may not refuse on grounds of conscience or belief, but equally clear that State functions should not be conflated with those of religious or traditional formations, and that officials should not be required to perform the ceremonial part of a marriage. The Bill, as drafted, does not expressly carry that distinction through. By treating solemnisation as a single act, it leaves open the possibility that a State-employed marriage officer could be understood as required to perform a ceremony that carries religious or cultural content.
This is where a clear constitutional eye is needed. Our Constitution protects both equality and the freedom of conscience, religion, thought and belief: it requires the State to serve everyone without discrimination, and it protects individuals from being compelled to act against their beliefs. The Constitutional Court has long recognised that these need not be treated as rival claims. In Minister of Home Affairs v Fourie, the case that extended marriage to same-sex couples, the Court made clear that acknowledging the equal rights of all couples does not compel any religious denomination or minister to solemnise a marriage contrary to their faith. Equality and religious freedom are not rivals in our constitutional order. They are closer to neighbours, and a carefully drafted law can honour both.
The way to honour both is to simply name the two moments in law. The Bill can distinguish formalisation (the State's mandatory act of concluding and registering a marriage) from solemnisation (the ceremony associated with it). Under this approach, State officials would be required to formalise every legally valid marriage, without exception, while designated religious, cultural and secular officers conduct the ceremonies in accordance with their own beliefs. It is worth being precise about what this is and is not. It is not a right for any official to refuse to serve a couple; it is closer to the opposite, placing a firm duty on the State to serve everyone and locating the accommodation only in the ceremonial sphere, which was never the State's to compel. Equal access is secured by requiring the State to serve, not by requiring anyone to celebrate.
The same clarity would help elsewhere in the Bill. Its offences are aimed, quite rightly, at fraudulent or unauthorised legal marriages. But, drafted around the word "solemnise", they may risk reaching a religious or cultural leader who performs only a bona fide ceremony, where the clear understanding of the law should be that the couple must still be married in law separately. Targeting the offences at unauthorised legal formalisation, rather than at ceremony, would catch the real mischief without exposing ordinary religious life to unintended criminal risk.
None of this diminishes the Bill's central achievement. FOR SA supports the recognition of all valid marriages and the broad designation of marriage officers across religious, secular, customary and Khoi-San communities. The point is simply that precision serves everyone. Getting the words right is how a good Bill avoids unintended harm and makes itself less vulnerable to later challenge.
South Africa has an unusual opportunity to build a genuinely plural marriage law: universal where the State must be universal, and free where freedom belongs. The current pause is the moment to get it right. The State should formalise every marriage but the ceremony is not the State's to compel. Hold those two ideas together, and the Bill can go a long way towards delivering equal dignity and religious freedom at once.
