South Africa’s Marriage Bill recognises all types of intimate partnerships – but raises many issues

South Africa is changing its marriage law to recognise all types of intimate partnerships – irrespective of gender, sexual orientation, or religious, cultural and other beliefs.

The Department of Home Affairs has invited public comment on the Draft Marriage Bill 2022. The bill amends some marriage laws, and prescribes what’s required for marriages to be considered valid, forms of registration, and the property consequences of marriage. As the preamble shows, it seeks to promote liberal values of equality, nondiscrimination, human dignity and freedom of thought.

While it is innovative for bringing all forms of intimate partnerships under one piece of legislation, the bill raises thorny questions. Liberalism – or openness to different behaviour, opinions or new ideas – is a strange beast. It pushes accepted conduct to its limits.

For instance, if the bill truly seeks equity, why does it not recognise intimate partnerships such as cohabitation? Why does section 22(6) criminalise marriage between people who are related to each other by adoption or by blood (to certain degrees)?

I have researched these issues, notably as a member of the Advisory Committee on Matrimonial Property of the South African Law Reform Commission.

I believe that even though the bill promotes important constitutional values, it does not sufficiently reflect changing social and economic conditions. Specifically, it ignores polyandry – marriage of...

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