LAW COMMISSION PROPOSES AMENDMENTS TO MARRIAGE ACT

Marriages are presently regulated by the Marriage Act (Act 25 of 1961), which is inconsistent in many respects with the new constitution. The SA Law Commission (SALC) has been mandated to investigate a series of family law themes and make proposals for appropriate changes. SALC's first study culminated in the 1998 Recognition of Customary Marriages Act. The second, a review of the Marriage Act, was submitted to the Minister of Justice on 6 June 2001. Preliminary proposals on the other two topics--Islamic marriages and domestic partnerships--are expected later this year.

The new SALC report focuses on the appointment of marriage officers, the performance of marriage ceremonies and restrictions on who may marry. It also recommends a number of amendments to the Marriage Act. This update highlights those of particular interest to churches.

Appointment process for religious marriage officers

The report recommends:

• Religious marriage officers no longer be required to be Christian, Jewish, Islamic or from "any Indian religion"; any recognised religious body could nominate marriage officers.
• The legal entrenchment of a three-step appointment procedure: a religious body would first apply to the Minister of Home Affairs for recognition, after which it could nominate officials who would then need to be appointed by the Minister (typically following the successful completion of a written examination).
• A religious body applying for recognition be required to affirm:
• that it believes in a religious doctrine, dogma or creed and is organised for religious worship;
• its marriage ceremony fulfils the requirements of the Marriage Act; and
• it is "sufficiently well established, both as to continuity of existence and as to recognised rites and usages respecting the conduct of marriages, to warrant the designation of its religious representatives as authorised to conduct marriages".
• A person nominated by a recognised religious body to become a marriage officer be:
• ordained or appointed by the nominating body, according to its rites; and
• authorised by the nominating body to conduct marriages according to its rites.
• A body be required to confirm when submitting a nomination that its members have been given adequate notice of the nomination to enable them to raise objections.

Revocation of recognition or appointment

The report recommends:

• A body be required to notify the Minister of Home Affairs if it changes its name or objects.
• The Minister be allowed to revoke recognition in writing if a body changes its name or objects.
• A religious marriage officer's appointment be subject to revocation on request (by the officer or the nominating body), or if the nominating body ceases to be a recognised denomination, or if the officer demonstrates unfitness by using his or her status for profit or by other serious contraventions of the Marriage Act.
• The Minister be required to inform in writing both the officer and the relevant nominating body when revoking an officer's appointment.
• Ministerial decisions regarding the appointment or revocation of appointment of marriage officers be subject to review by any provincial or local division of the High Court.
• Anyone falsely purporting to affect a valid marriage be subject to imprisonment for not more than two years imprisonment or the corresponding fine.

The performance of religious marriages

The report recommends:

• Abandonment of the requirement that a religious body secure Ministerial approval for its marriage formula, but retention of a slightly amended minimum prescribed wording:
  
  'Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage to C.D. here present, and that you call upon all here present to witness that you take C.D. as your lawful wife (or husband)?'
  and the marriage officer shall conclude the ceremony in the following words:
  
  'I declare that A.B. and C.D. here present are now husband and wife .'
• The Act retain the existing provision permitting a religious marriage officer to refuse to conduct a marriage that does not conform to the tenets of his or her faith.
• Religious bodies be permitted to establish the maximum fee that its marriage officers may charge for conducting a marriage ceremony; and that the maximum penalty for violating this provision be not more than six months imprisonment or the corresponding fine.

General recommendations affecting all marriages

The report recommends:

• The minimum age at which both boys and girls may be married without written parental consent be set at 18 years.
• Ministerial approval be required for a marriage between two people related by affinity (in-laws).
• Inclusion of a general provision declaring marriages void if the parties are within a prohibited relationship or if either party is lawfully married to another person, under marriageable age, or mentally incapable of understanding the nature and effect of the marriage ceremony.
• A marriage be voidable if either party is the victim of coercion or mistaken identity, or is permanently impotent, or where the woman is pregnant by a person other than the husband at the time of the marriage.
• A person objecting to a marriage must do so in writing and must provide a copy of the objection to the couple contemplating marriage at least 24 hours before the ceremony.
• The abolition of restrictions on the places where marriages may be conducted.

Information and comment

The full report is available from SALC or by request from the SACC Public Policy Liaison Office. The Department of Home Affairs does not plan to have a formal comment period on the draft bill before it is considered by Cabinet, but comments may be forwarded by post to:

Director-General, Department of Home Affairs
Private Bag X114
PRETORIA
0001