Written by: Daniela Ellerbeck, FOR SA Legal Advisor
Article source: JOY! Magazine
Currently, there is no single law governing the solemnisation and registration of marriages. Instead, there are various laws governing different marriages – for example civil marriages, civil unions, and customary marriages. For this reason and to fill in other ‘gaps’ in the law, Government has been planning to update South Africa’s marriage laws for a while.
FOR SA is active
This single marriage legislation is proceeded by a policy, which sets the framework for regulating marriages and makes recommendations regarding which position the law should adopt. To this end, the Department of Home Affairs initiated two national consultative processes, one to develop a policy and the other to formulate legislation which will then govern and regulate all marriages which take place in South Africa. FOR SA has been part of both these processes from their inception, speaking on panels and making presentations and submissions.
Draft Marriage Policy
The Department published a Draft Marriage Policy for the public’s comment in 2021. FOR SA was constant in our interactions with the Department, insisting that any policy which aims to set the framework for marriages must explicitly protect religious marriage officers’ constitutional rights. To do otherwise would potentially force pastors with marriage licenses to solemnise marriages which were contrary to their – and/or their organisation’s – religious convictions and beliefs or doctrines.
Success story
The Department has now published the final policy, entitled the White Paper on Marriages in South Africa. FOR SA is pleased to report that this White Paper specifically does not force religious marriage officers to solemnise marriages that are contrary to their faith. Instead, it recommends allowing members from all social groups to become marriage officers so that they can solemnise relationships in line with their own value systems. It further recommends that civil marriage officers employed by the Department, although required to provide marriage services to all members of the society, will not perform any ceremonial functions. In our view, this is a welcome splitting between the functions of the State and religious organisatiaons.
Fighting for religious freedom
The White Paper further recommends that any future single marriage law follow an “omnibus” format to allow for the specific tenets of different religious faiths and traditions to be incorporated, while ensuring that the requirements of the State are accommodated. This is in keeping with FOR SA’s previous recommendations, where we opposed a “one size fits all” formula. FOR SA will continue to monitor this process closely and, when this Bill opens for comment, we will notify the public should there be any religious freedom concerns.
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Date published: 17/07/2022
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