South Africa’s new equal Marriage Bill has been published

The Department of Home Affairs has published a draft new Marriage Bill which would ensure that all monogamous and polygamous marriages are equal in South Africa.

The draft Bill, which has been approved by the Cabinet, was published in the Government Gazette on 7 July and is now open for public comment. It aims to create a single, simplified Marriage Act for the country.

Marriages in South Africa are currently regulated through three laws: The Marriage Act (for monogamous marriage for opposite-sex couples), the Recognition of Customary Marriages Act (polygymous marriages for opposite-sex black South Africans) and the Civil Union Act (monogamous partnerships and marriages for both same and opposite-sex couples).

These laws are an inconsistent and discriminatory mix of colonial and apartheid-era legislation as well as newer laws that were introduced post-1994.

They don’t, for example, accommodate transgender people married under the Marriage Act who change their sex marker; they are currently forced to get divorced and remarry their spouse as a same-sex couple under the Civil Union Act.

Home Affairs explained in a statement that the new Marriage Bill “seeks to rationalise legislations dealing with marriages and ensure that all persons, regardless of race, sex, gender, sexual orientation, religious or cultural beliefs, are treated equally and with dignity.”

The bill would legislate and define monogamous marriages as being possible between any two adult prospective spouses, regardless of their sex or gender.

There had been speculation that the bill would also allow for polygamous queer marriages and this appears to be the case.

According to the proposed legislation, a polygamous marriage could be entered into by any prospective spouses, regardless of gender or sex, with the consent of all parties involved. This would, for example, legally allow three men to get married, or for a woman to marry another woman and a man.

Home Affairs said that “public comments are critical” and has called for all interested parties to submit written comments on the bill, which can be found here.

The closing date for written submission is on or before 31 August 2023. Submissions should be addressed to the Chief Director: Legal Services in any of the following ways:

• Delivered by hand to the Department of Home Affairs, 230 Johannes Ramokhoase Street, Hallmark Building, Pretoria, for the attention of Adv Moses Malakate (012 406 4273) or Ms Agnes Molefe (012 406 4273).
• Mailed to the Department of Home Affairs, Private Bag X114, Pretoria, 0001.
• Faxed to 0865 769 025, or
• Emailed to Moses.Malakate@dha.gov.za or Agnes.Molefe@dha.gov.za.