Home Affairs has been embroiled with unfair discrimination cases when issuing marriage licenses. Often, when seeking a marriage license same-sex couples are blockaded with obscene obstacles implemented by the department’s officials whom are usually denying the licenses because of personal and religious beliefs.
The department is looking to address these issues by hosting a dialogue on the development of a new single marriage law for all South Africans, regardless of sexual orientation or culture. Home Affairs Minister, Dr Aaron Motsoaledi, said that this dialogue is to engage with gender and human rights activists “on how to mainstream equality, human dignity and non-discrimination principles in marriage legislation and practice”.
“Engagements with stakeholders will help identify key issues to be addressed by the new marriage policy and legislation. Targeted stakeholders are those playing critical roles in the solemnisation, registration and dissolution of marriages,” said Thabo Mokgola, spokesperson for Home Affairs.
The new marriage policy will inform the drafting of a single marriage act which will replace the existing acts,” explained the department.
“A new single marriage act will enable South Africans of different sexual orientation, religious and cultural persuasions to conclude legal marriages that will accord with the constitutional principle of equality”.
According to MambaOnline, marriages in South Africa are regulated through three pieces of legislation: Marriage Act 25 of 1961 (for monogamous marriage for opposite-sex couples); Recognition of Customary Marriages Act 120 of 1998 (polygamous marriages for opposite-sex couples) and Civil Unions Act 17 of 2006 (monogamous partnerships for both same and opposite-sex couples).
However, under the Civil Union Act Home Affairs officials are allowed to opt-out of marrying same-sex couples on the basis of their personal beliefs. This leads to many LGBTQ+ South Africans being humiliated at the hands of these officials, despite the Civil Union Amendment Bill being passed in December 2018 by the National Assembly in Parliament, which aims to have this discriminatory provision scrapped.
Roché Kester, Hate Crime Manager at OUT LGBT Well-being, welcomed the department’s quest to modernise the marriage policy so that equal marriage is a reality for all South Africans.
“It’s a good move towards being more inclusive. Civil unions are what the government did [in 2006] to comply with the Constitutional Court but essentially it is still something that remains separate but not wholly equal,” she said.
“Home Affairs officials cannot be allowed to decide who gets married or not. The Civil Union Amendment Bill must still become law to ensure that there is some kind of equality in the meantime,” said Kekster.