PHUMLA WILLIAMS: What our Green Paper on Marriages means for everyone
As our world-acclaimed Constitution of the Republic of South Africa of 1996 marks its 25th anniversary this year, we should all reflect on how it continues to shape the ideals of a non-racial, non-discriminatory and non-sexist society that we envisaged when we attained our hard-won freedom in 1994.
One of the noteworthy tenets of our Constitution is the protection of the basic human rights of women in a marriage and the eventual recognition of marriages of persons of different sexual orientation, after a bitter legal struggle though. Our Constitution has also been stepping in to protect the long overdue rights of children who continue to be victims of arranged marriages, especially in rural areas.
Prior to 1994, South African marriage laws were based on the Calvinist-Christian and Western traditions, with no provision for other forms of unions. Various repeals of the discriminatory Black Administration Act of 1927 and the Marriage Act of 1961 respectively, culminated in the introduction of the more liberal Recognition of Customary Marriages Act of 1998 and later the Civil Union Act of 2006.
Some of the amendments were triggered by court judgments, such as the most recent Constitutional Court judgment that declared the marriages of elderly black women, who were deemed to have been married "out of community of property" under the old and oppressive Black Administration Act of 1927 and the Matrimonial Property Act of 1984, unconstitutional.
In addition, a number of religious marriages such as Hindu, Muslim and some customary marriages remained outside of the marriage regime, except for some adjustments that were made due to some legal recourse.
When Cabinet recently approved the Green Paper on Marriages for public comment, it was a welcome step towards repealing all current pieces of marriage legislation. Most parts of these current laws are discriminatory against women and people of different sexual orientations. Numerous interest groups ranging from religious groups, traditional leaders and affected women, to gender activists and lobby groups have since made their submissions on the draft Green Paper.
This proposed Green Paper seeks to create a single framework and policy foundation for regulating the marriages of all people residing in South African.
Key to this proposed policy is to find a marriage regime that will restore the human rights and dignity of all those who opt to solemnise their love relationship – irrespective of their sexual orientation, religious background or traditional union. It is about giving all people in South Africa the fundamental right to a marriage that is aligned to the constitutional principles of non-discrimination, non-racialism and non-sexism.
Contrary to widespread public sentiments, the policy is not only about polyandry nor polygamy. It is however about how people will solemnise their love relationships within the framework of the democratic laws of our country.
These interventions are mainly about how our laws would protect marital relationships, which should ordinarily be applied equally and fairly to all people irrespective of race, gender, religion or age. They also seek to restore the human rights and dignity of all those who chose to get married.
The policy also proposes the protection of women in customary marriages by enforcing the registration of such marriages. Once adopted the policy would, among other things, make it mandatory for both parties to register their customary marriage in person, protect the rights of transgender couples in their marriage and provide for same-sex marriages.
It would align the marriage, matrimonial property and divorce legislation to address matrimonial property and intestate succession matters in the event of the dissolution of a marriage. It also deals with the union and registration of marriages that involve foreign nationals and customary marriages that involve non-citizens, in particular citizens of our neighbouring countries.
Meanwhile, South Africa has over the years been grappling with the societal problem of arranged child marriages, which often saw some parents of the minors consenting for financial gain instead of ensuring that their children attend school. The good news is that this policy completely prohibits all child marriages, even with parental consent. No parent or guardian is allowed to marry a minor who is under the age of 18 years.
This legislative provision will go a long way in the ongoing fight to stop the abduction and sexual molestation of children under the guise of marriage.
The ultimate new marriage regime will ensure the country upholds a non-racial, non-sexist and non-discriminatory society anchored on the principles of human dignity, mutual respect and equality.
The public consultation of this draft Green Paper on Marriages closes on Wednesday, 30 June 2021. Let us contribute towards creating a united nation in which all people coexist in peace and harmony, as envisaged at the dawn of our freedom and democracy in 1994.
Phumla Williams is the Director-General of Government Communication and Information System. You can follow them on Twitter on @mirriamp