There are currently three separate Acts that regulate the registration and recognition of marriages and civil unions in South Africa. These are the Marriage Act, the Recognition of Customary Marriages Act and the Civil Union Act.
Recently, a new Marriages Bill 2023 has been published for comment, which intends to consolidate these Acts into a single document.
The preamble of the Bill recognises that due to the rich cultural and religious diversity in South Africa, it has become necessary to extend the different types of marriages that must be recognised and the proprietary consequences of such marriages. Some commentary on the Bill however suggests that it is silent on many issues such as cohabitation and the coexistence of civil and customary marriages.
The work put in to drafting a new marriages bill was certainly expedited by a judgment by the Constitutional Court in 2022 in an application brought by the Women’s Legal Centre Trust, which confirmed that certain sections of the Marriages Act and the Divorce Act were inconsistent with the Constitution and declared invalid. The judgment also confirmed that the non-recognition of marriages under Sharia Law meant that women were often not afforded with the same protection and remedies when they divorce.
A media statement was released as recently as 9 May 2024, indicating that the President has subsequently signed the Divorce Amendment Bill which now addresses these shortcomings and provides for a definition of a Muslim marriage in the Divorce Act of 1979; the protection and safeguarding of the interests of dependent and minor children of a Muslim marriage; the redistribution of assets on the dissolution of a Muslim marriage and forfeiture of patrimonial benefits of a Muslim marriage.
