Adv NadeneBadenhorst, FOR SA Legal Counsel
*NOTE: A recent letter by Back2God “to all pastors” advised of a “consultative” meeting with the Minister of Home Affairs on 30 August 2019, and called upon pastors to object to having two days’ notice only. Please note that the distributed letter contains a number of factual inaccuracies, but as appears from our article below, FOR SA is well aware of the matter and issues of concern. Pursuant to Back2God’s letter, we have again been in contact with the Department of Home Affairs, who has confirmed that the meeting of 30 August was the first in a series of meetings with different stakeholders to take place over the next two months. The meeting for religious leaders is still forthcoming. FOR SA will advise of the details of this meeting as soon as it is available.
On Monday 8th July, Freedom of Religion South Africa (FOR SA) met with representatives of the Department of Home Affairs (DHA) to discuss their proposed policy on marriage in South Africa. This policy will set the platform for the possible adoption of a single “Marriage Act”, governing all marriages entered into in South Africa. This could either take the form of a unified set of requirements (and possibly consequences) applying to all marriages, or a single Act with different chapters which reflect the current diverse set of legal requirements for and consequences of civil marriages, civil unions, customary marriages, Muslim and possibly other religious marriages (i.e. an omnibus or umbrella marriage Act).
The meeting took place as part of the DHA’sengagement with different stakeholders to understand their experience of thesolemnisation and registration of marriages in South Africa and they will usethis input to inform the development of the proposed policy. It was a positive meeting during which FOR SAwas able to share its experience in this regard. We particularly highlighted the increasingpressure experienced by religious marriage officers – many of whom believethat, according to Scripture, marriage is the permanent union of one man andone woman - to solemnise same-sex marriages. Many of them have alreadyexpressed the sentiment that, should they be forced by law to do so, they wouldrather hand in their marriage licence than to act against their religiousconvictions and beliefs.
Background tothe proposed policy
In South Africa currently, there is no single lawgoverning the solemnisation and registration of marriages. Instead, there arevarious pieces of legislation governing different civil marriages, civilunions, customary marriages, etc.
Historically, the Marriage Act of 1961 governed marriages between one man and one woman. In terms of this Actalso, any minister of religion, or any person holding a responsible position inany religious denomination or organisation, can be designated as a marriageofficer for the purpose of solemnising marriages according to Christian, Jewishor Mohammedan rites or the rites of any Indian religion (i.e. a religiousmarriage officer).
Following the judgment of theConstitutional Court in Minister of Home Affairs v Fourie (2005)which effectively legalised same-sex marriage in South Africa, Parliamentadopted the Civil Union Act of 2006. This Act allows heterosexual, andhomosexual, couples to get married or conclude a civil union (which is legallyno different to a marriage, and essentially a matter of terminology). In termsof this Act also, a religious denominationor organisation may apply to solemnise marriages (including therefore same-sexmarriages) under this Act. Importantly, aperson who is a religious marriage officer under the Marriage Act is notautomatically also a marriage officer for purposes of the Civil Union Act, butmust apply specifically to have such a licence.
Customary marriage (i.e. the potentially polygynousmarriages of indigenous African people) is in turn governed by a mixture ofstatute (i.e. Recognition of Customary Marriages Act of 1998), thecommon law and norms of customary law.
WhileMuslim, Hindu and other religious marriages can legally be concluded under theMarriage Act, unless they comply with all the legal technical requirements ofthe Act (including the marriage formula and presence of witnesses), they arenot valid. For this reason, they often enter into both civil marriages (underthe Marriage Act) and religious marriages. The 2003 South African Law ReformCommission (SALRC) Report on Islamic Marriages recommended the adoption oflegislation to give legal effect to these marriages, but no law has yet beenpassed. An appeal against the order compelling government to pass such a law inWomen’s Legal Centre Trustv President of the RSA; Faro v Bingham; Esau v Esau (2018) iscurrently pending before the Supreme Court of Appeal (SCA).
Inaddition to the aforegoing issues around the solemnisation of different typesof marriages, there are also issues around the registration of marriages,marriages with foreign nationals, as well as fraudulent marriages and marriagesof convenience that need to be addressed. Our current law also does not recogniselife and domestic partnerships outside of marriage.
It is againstthis background that the Ministry of Home Affairs proposed an investigationinto the development of a single Marriage Act for South Africa, which would giveexpression to the constitutional principle of equality and non-discrimination(s 9 of our Constitution).
As part of its investigation also, the Ministry instructed the SALRC to consider and comment on the need for and proposed content, of such an Act. To this end, the SALRC recently published Issue Paper 35 (“Single Marriage Statute”), which is now open for public comment until 31 July. (To view the Issue Paper, and for details on how to comment on the Paper, click here.)
FOR SA’s meeting with the DHA
During ourmeeting, the DHA explained that their primary focus in the proposed policywould be the following: marriages that involve minors (children below 18years); polygamous marriages; and LGBT+issues. With regard to LGBT+ issues andthe issue of solemnisation of same-sex marriages by religious marriage officersin particular, the DHA explained that the proposed policy would put forwardvarious options without expressing a particular preference for one or theother:
While option c) will once and for all remove the increasing (social and legal) pressure exerted on religious marriage officers to – potentially against their religious convictions and beliefs – solemnise same-sex marriages, it is a major question whether the already burdened State has the capacity to be the sole functionary of the tens of thousands of marriages concluded in every province in South Africa every month. As it is, persons who want to get married before a State marriage officer, often have to wait weeks if not months to get an appointment and unless this problem is resolved, it is difficult – from a practical point of view – to see how option c) could realistically work.
At themeeting, FOR SA also highlighted our concerns with the Civil Union AmendmentBill which is still before Parliament. We pointed out that the conscientious objection clause (making itpossible for State marriage officers who have a conscientious objectionto solemnising same-sex marriages, to “opt out” of doing so) included in theCivl Union Act, was not an oversight or a mistake. Rather, it was a directapplication of the Constitutional Court’s statement in the Fourie case that marriageofficers whose conscience might be compromised if obliged to solemnise same-sexunions, should have their rights protected and respected.
In so faras the process and timelines around the proposed marriage policy areconcerned, the DHA explained that they are now in the process of meetingcrucial stakeholders for their input prior to developing the policy. Theobjective is to by March 2020 have a draft policy for the Minister to approvefor formal consultation. Thereafter, during 2020 and 2021, extensiveconsultation on the policy will follow. The objective is to have a finalisedgovernment policy by March 2021 which can be presented for Cabinet approval.Once Cabinet has approved the policy, a Bill will be drafted which will followthe normal parliamentary procedures of public comment and consultation.
FOR SAwill continue to engage with the DHA, and also its constituency, in this regardto make sure the rights of religious organisations and marriage officers remainprotected.
[author] [author_info]Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.[/author_info] [/author]
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