IN THE SPOTLIGHT: MARRIAGE BILL

IN THE SPOTLIGHT: MARRIAGE BILL

• 30 September 2024
• In the Spotlight
• SA Legal Academy

The Constitutional Court has given Parliament until 26 June 2026 to remedy defects in the Marriage Act, 1961, and the Divorce Act, 1979, which were found to have been ‘inconsistent with sections 9, 10, 28 and 34 of the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages)’. The extension was announced in a media statement issued by the Court on 19 September 2024.

Provisions in the Divorce Act requiring remedial action in terms of the Court’s June 2022 ruling were the focus of a Divorce Amendment Bill passed by Parliament in February 2024. Having been signed into law, the Bill was enacted and commenced three months later. Against that backdrop, a Bill with the same title tabled in December 2022 by Al Jama-ah’s Ganief Hendricks was withdrawn in October 2023.

Introduced in November 2022, Hendricks’ Registration of Muslim Marriages Bill was withdrawn a year later – shortly before then Home Affairs Minister Aaron Motsoaledi tabled the Marriage Bill in December 2023.

According to a memorandum on the objects of the Marriage Bill now before Parliament, it seeks, among other things, to:

• ‘rationalise’ existing legislation on the ‘various types of marriage’, and
• provide for the requirements for monogamous and polygamous marriages.

Released in draft form in July 2023 for public comment, the proposed new piece of legislation is underpinned by the 2022 White Paper on Marriages and was first considered by the previous Parliament’s National Assembly Home Affairs Committee on 6 February 2024. According to Parliamentary Monitoring Group (PMG) records, during that meeting members agreed that the Constitutional Court should be approached for an extension to its 26 June 2024 deadline for attending to defects in the Marriage Act. This was noting that the Bill’s passage through Parliament would be interrupted when the House rose for its traditionally lengthy pre-elections period – when it would automatically lapse.

Six weeks later, during a briefing on the Bill, members were advised to proceed with the public participation process by calling for written submissions in anticipation of hearings to be held after the elections by the seventh Parliament’s committee (PMG). With that in mind, on 5 April 2024 notices were issued inviting stakeholders and members of the public to make written representations on the Bill.

The Bill was revived in July 2024, since when the new National Assembly Committee on Home Affairs has been briefed on key points raised in the written submissions received – and a plan for nationwide public hearings.

• Bill
• summary of written submissions
• Constitutional Court media statement
• White Paper
• Divorce Amendment Act
• withdrawn Registration of Muslim Marriages Bill (Ganief Hendricks)
• withdrawn Divorce Amendment Bill (Ganief Hendricks)

Published by SA Legal Academy Policy Watch

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