ANDREAS VAN WYK BA (cl) LLB (cl) BPhil (cl) (Stell) LLD (cl) (Leiden) LLD (hc)(Leuven) Retired professor of Law, Rector and vice-chancellor emeritus University of Stellenbosch PRESENTATION TO PORTFOLIO COMMITTEE ON HOME AFFAIRS RE MARRIAGE
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Presentation Transcript
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ANDREAS VAN WYK BA (cl) LLB (cl) BPhil (cl) (Stell) LLD (cl) (Leiden) LLD (hc)(Leuven) Retired professor of Law, Rector and vice-chancellor emeritus University of Stellenbosch PRESENTATION TO PORTFOLIO COMMITTEE ON HOME AFFAIRS
RE MARRIAGE BILL [B 43 – 2024]
2 -3 December 2025<br>
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HISTORY AND BACKGROUND Three historical and religious backgrounds to bring under one roof
The Constitution of 1996 guarantees freedom of religion and requires the state to be neutral in religious matters
The constitution prohibits discrimination on grounds of ”gender, sex,.. marital status, ethnic or social origin, … sexual orientation, age, disability, religion, conscience, belief, culture, language… and birth”.
Present South African law creating the framework for the requirements of a valid marriage has Christian roots, as developed in Europe since the Middle Ages
These roots define marriage as a union between one man and one woman aimed at a lifelong bond
The social realities of South Africa over the last three centuries have required departures from this definition in three important regards, a process which has accelerated since 1993:
monogamy;
difference in gender;
lifelong bond
There has been great progress in advancing equality over the last three decades, but differences remain
Aim of Bill is to eliminate remaining differences and achieve the equal treatment of all marriages regardless of their religious or philosophical roots (cl 3).<br>
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PROBLEMS Laudable objects (cl 2), but many problems in present draft
Definition of ”polygamous marriage” being restricted to a male spouse with more than one wife NOT a problem in my view, given social reality (cf secs 36(3) & 39(1)(c) of the Constitution)
Major problem is chapter 6, which is not part of the remit of the Department of Home Affairs and which is not even mentioned as an object of the Act in cl 2
The central proposal in chapter 6 is the abolition of the very idea of a legal matrimonial property regime in our law and its replacement by an individual choice of regime by the parties to every marriage (cl 15(2))
This is totally unpractical, is based on incorrect assumptions about matrimonial property law, would make South Africa unique in the world and would create create chaos in our Private International Law
Clauses 14 (on the status of spouses) and 16 (on the dissolution of marriage) are superfluous and do not belong in the Bill
Clause 4 (on the proof of identity of spouses) should rather be placed in chapter 5 of the Bill
Cl 5(2) (on religious marriage rites) is a curious proposal for which I cannot see any reason and which may infringe the principle of religious freedom.<br>
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PROBLEMS (cont) The minimum age of 18 laid down in cl 5(1)(a) is not subject to any qualification unlike the present sec 26 of the Marriage Act. Is this wise?
Meaning of “secular organisation” in clause 8(3)(b)?
Register of marriage officers?
Reintroduction of marriage by proxy (’huwelik met die handskoen’) by proviso to cl 11(2): need? Possible abuse. Reconcilable with cl 11(6)?
Can department of Home Affairs cope with cl 13(5)’s compulsory registration?<br>
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POSITIVE ASPECTS Clear requirement in cl 6(2) that husband in polygamous marriage gets consent of first wife, even though courts have required, BUT: Is the exception in favour of royal families necessary and wise?
Polygamous same-sex marriage not possible in terms of cl 6(3); recognises social reality
Removal of present sec 29(2) on place of solemnisation and replacement by cl 11(1): any pace and time
No prescribed ceremonial, unlike sec 30(1) of present Act; only cl 11(5)
Retention of conscientious objection by religious marriage officer (cl 11(4)).<br>
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THE ROAD AHEAD In its present form the Bill cannot proceed
Committee removes problematical clauses, chapter 6 in particular, and redrafts others,
OR
refers Bill back to department to redraft in order to eliminate the present problems, and to consult with the Department of Justice on the Law Commission’s project on matrimonial property (see too the present General (Family) Laws Amendment Bill B 20-2025).
