I DO… OR DO I?

Article by: Kaden Creighton

South Africa recognises and accommodates a range of relationship types, reflecting the country’s commitment to equality and diversity as enshrined in the Constitution. The Marriage Act, Civil Union Act, Muslim Marriages Bill and Life Partnership Agreement each serve unique purposes in providing legal recognition and protection for couples.

The Marriage Act, enacted in 1961, governs civil marriages in South Africa. It recognises marriage as a legal union between a man and a woman, based on monogamy and equal rights and responsibilities for both partners. The act provides a comprehensive framework for the formation, dissolution and legal consequences of marriage. It covers matters such as property rights, inheritance and divorce proceedings. It is in terms of the Marriage Act that the majority of South Africans interact with the institution of marriage.

However, marriage in terms of the Marriage Act is not available to all South Africans, specifically homosexual couples. In 2005, the case of Minister of Home Affairs and Another v Fourie and Another was heard before the Constitutional Court. The court ruled unanimously that same-sex couples have the constitutional right to marry. As a response to this, in 2006, the Civil Union Act was enacted. This act provides a legal framework for same-sex couples to confirm their lifelong relationship in terms of the law.  It relates to the legal consequences of entering into a civil union, with these consequences being identical to those of entering into a marriage in terms of the Marriage Act. The only difference is the name of the two acts. This state of affairs is the cause of growing concern in South Africa. The question here is obvious: if Section 9 of the Constitution ensures equality for all, and it was in terms of this section that same-sex marriage was declared a constitutional right, then why is there a separate piece of legislation that same-sex couples must adhere to? It therefore stands to reason that same-sex couples should be allowed to marry in terms of the Marriage Act, and not be effectively barred from doing so by the Civil Union Act.

In terms of Muslim marriages, nothing prevents those who practise Islam from entering into a marriage in terms of the Marriage Act. However, Muslim marriages are traditionally governed by Islamic law, which is not recognised as binding in South Africa. This can be somewhat problematic, especially in the instance of divorce. Muslim women are often left in an invidious position upon divorce, and are sometimes even left destitute. This is as a result of them having no legal recourse in terms of South African law, due to the fact that the marriage was never legally recognised. To combat this, Parliament has tabled the Muslim Marriages Bill, which seeks to recognise Muslim marriages under South African law, providing greater legal certainty to those wishing to enter into a Muslim marriage.

Finally, a life partnership agreement is also available as an option to couples who are looking to consolidate their relationship. This avenue, however, is not governed by any specific piece of legislation, but rather by the general principles of contract. This agreement enables couples to define their rights and responsibilities, establish property regimes and address issues such as inheritance and maintenance.

Each of the abovementioned options serves unique purposes in providing legal recognition and protection for couples in South Africa. The law is constantly adapting to the changing values of society, and rightly so. It is important to keep abreast of the developments surrounding marriage; after all, entering into a marriage is one of the most legally significant choices in one’s life.