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South African Law Commission

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The Court decided in Santos v Santos that if the Legislature had intended to accord recognition to foreign embassy or consular marriages in South Africa it would undoubtedly have made provision for it in the Marriage Act, and that there is, equally, no indication that South African law has followed the practice of the United Kingdom and other countries in Western Europe of according recognition to foreign embassy or consular marriages. The question arises whether there is a need to accord recognition to foreign embassy or consular marriages in South Africa in view of the absence of such statutory recognition. The Commission requests comment on this aspect in particular. (See par 2.1.1.7 and 8)

The term "Commissioner" is defined as follows in the Marriage Act: "‘Commissioner’ includes an Additional Commissioner, an Assistant Commissioner, a Native Commissioner, an Additional Native Commissioner and an Assistant Native Commissioner". Enquiries made at the Department of Home Affairs established that there are no marriages presently being celebrated by Commissioners as contemplated in the Marriage Act. It is clear therefore that the Marriage Act does not reflect the present position on the designation of Commissioners and special justices of the peace as marriage officers. The Act should be brought into line with the prevailing position and the definition of "Commissioner" in section 1 and the terms "Commissioner" and "special justice of the peace" in section 2(1) of the Act should be deleted. Section 2 of the Marriage Act should further be amended by providing in section 2(1) that certain persons in the diplomatic and consular service of the Republic, namely Ambassadors, High Commissioners and Consuls should by virtue of their office and as long as they hold such office be ex officio marriage officers for the area in which they hold office. (See par 2.1.1.9 - 11)

The Marriage Act permits the designation as a marriage officer of any minister of, or person holding a responsible position in, "any religious denomination or organization". It is restrictive in that marriage officers can be designated only for the purpose of conducting marriages according to "Christian, Jewish or Mohammedan rites or the rites of any Indian religion." The Commission considered whether the suggested phrase "according to the rites of the religious denomination or organisation concerned", will remedy the situation. The Commission also considered the option suggested by the Department of Home Affairs to grant authority to the Minister of Home Affairs to appoint a person as a marriage officer who has been nominated by a religious denomination or organisation once the Minister is satisfied that the denomination or organisation concerned is a bona fide religious denomination or organisation. The problem with this option is that it suggests no other grounds for the Minister to refuse to appoint the person concerned (eg that he or she is unfit to be a marriage officer ) except for a defect in the bona fides of the organisation. A third option considered was to empower the Minister to designate by proclamation recognised religious groups or religious organisations. The Marriage Act could then provide that ministers of religion or persons holding responsible positions in religious denominations or religious organisations recognised by the Minister by notice in the Gazette, may be designated by the Minister to be marriage officers. The Commission decided to leave the question to respondents and invites comment on these options. Comment is also invited as to whether criteria formulated to guide the Minister in the exercise of his or her powers should be included in the Act. (See par 2.1.2.31 and 2.1.2.32, 2.1.2.38 and 42)

The question arises whether there is a need to reconsider the limitation placed on the authority of ministers of religion or persons holding responsible positions in religious organisations or denominations to join parties in marriage. As noted above the Act presently makes provision that such authority may be limited by the Minister to specified areas or specified periods. The Commission considers that there is no apparent reason why the Minister should be prevented from limiting the authority as is presently the case. Comment is, however, invited on this aspect. (See par 2.1.2.39)

The Department of Home Affairs propose in their Bill that any decision made by the Minister to designate someone as a marriage officer or to revoke the designation of the marriage officer should be reviewable by any provincial or local division of the High Court of South Africa. The Commission finds the proposal to be persuasive. The Commission is of the view that legal certainty will be one of the benefits should such a review procedure be set out in the Marriage Act. (See par 2.1.2.40 and 42)

The present position requiring that marriage officers be designated by written instrument should be retained and there does not seem to be justification for the deletion of section 4 of the Marriage Act. (See par 2.1.4.3 and 4)

The present section 5 of the Marriage Act dealing with marriage officers under laws repealed by the Marriage Act of 1961 should be retained. (See par 2.1.5.4)

The Marriage Act provides for the solemnisation of marriages. It is clear that a marriage is not necessarily solemnised, but the alternative "celebrate" is not without its problems. The Commission considers that the terms "conduct a marriage" or "join parties in marriage" are better substitutes and that words to that effect should be used in place of the terms "solemnize" or "solemnization" where appropriate in sections 3(1) and (2), 5, 6(3) and (5), 9, 10(1) and (2), 11(1) and (2), 12, 22, 23, 24(1), 26(2), 27, 29(1), (2) and (3), 29, 29A(1), 30(1), (2) and (3), 31 and 35. (See par 2.1.6.4)

The Commission considers that section 6 dealing with the issue of certain persons who may in certain circumstances be deemed to have been marriage officers, should not be amended. The Commission however considers that the references to the Minister delegating powers to any officer in the civil service should be reconsidered. It is recommended that provision be made in a separate clause 2A that the Minister may, subject to the conditions that he or she may deem necessary, delegate any power conferred on him or her by this Act to a person in the service of the Department, but shall not be divested of any power so delegated and may set aside or amend any decision of the delegate made in the exercise of such a power. (See par 2.1.7.4 and 6)

A proposal was made that the joining of parties in marriage should be privatised, ie persons other than those presently appointed should also be able to conduct marriages. The Commission noted that the New Zealand Marriage Act makes provision for the appointment of, inter alia, persons of good character as marriage celebrants. In view of the limited requests calling for such a step, the Commission is not convinced that the appointment of marriage officers should be extended to include persons other than the present categories of marriage officers. However, the Commission would appreciate the view of respondents on this matter in particular. (See par 2.1.8.4)

The Commission considers that the Marriage Act should be amended to include more grounds for notifying the Minister of changes in the circumstances of religious denominations and religious organisations, such as changes in their objects and, furthermore, that it should provide for the Minister’s power to revoke by notice in the Gazette the designation of a person as a marriage officer or the designation of a religious denomination or religious organisation recognised under the Act. (See par 2.1.9.5)

The grounds for revoking the appointment of a person as a marriage officer should be set out in more detail in the Marriage Act than is presently the case under section 9. (See par 2.1.10.5)

Section 10(1) should be amended to provide that any person who is authorised to conduct any marriage in any country outside the Republic of South Africa, may conduct a marriage between parties at least one of whom is a South African citizen and domiciled in the Republic, and a marriage so conducted must for all purposes be deemed to have been conducted in the Republic. (See par 2.1.11.5)

It is recommended in regard to section 11 of the Act that-

section 11(1) which provides that a marriage may be conducted by a marriage officer only, should remain intact;

the penalty for not complying with the section, namely where any marriage officer who purports to join parties in marriage which he or she is not authorised under the Act to conduct or which to his or her knowledge is legally prohibited, and any person not being a marriage officer who purports to join parties in marriage, provided for in section 11(2), should be increased to a term of imprisonment not exceeding two years; and

section 11(3) which makes provision that it shall not constitute an offence if a marriage is conducted in accordance with the rites or formularies of any religion, if such ceremony does not purport to effect a valid marriage, should remain intact. (See par 2.1.12.6 - 11)

Section 12 prohibits the joining of parties in marriage without the production of an identity document or the making of the prescribed declaration by the parties. It is clear that there is a need for prescribing that parties should produce proof of their identity to marriage officers. However, it is also clear that there could be circumstances of non-compliance and the question is raised as to what the consequences should be. The Commission considers that the Marriage Act should be amended to state that failure to comply strictly with the provision does not affect the validity of the marriage provided that such marriage was in every other respect conducted in accordance with the provisions of the Marriage Act, that there were no other lawful impediments to the marriage and that such marriage has not been dissolved or declared invalid by a competent court, and provided further that neither of the parties to such marriage has after such marriage and during the life of the other, lawfully married another. (See par 2.1.13.6 and 7)

It is considered that even if section 22 is not retained in the Act in its present form, the Marriage Act should still in future set out specifically what the consequences are if the requirements regarding banns, notices of intention to get married and special licences are not strictly complied with, as the section presently does. (See par 2.1.14.2 and 4)

The Department of Home Affairs proposed a provision on the recognition of marriages and the powers of the Minister to obtain information regarding the marriage which is restricted to marriages conducted according to the tenets of a religion. This provision is a transitional provision which deals with marriages concluded according to the tenets of a religion prior to the commencement of the Bill proposed by the Department. Since the question of religious marriages will not be addressed in this investigation, the Commission is of the view that the Bill should not contain a transitional provision dealing specifically with marriages concluded according to the tenets of a religion. (See par 2.1.14.2 and 4)

It seems apparent that if the Marriage Act were to require notice to be given to parties intending to get married, they could possibly assist the marriage officer from an earlier stage should the objections be unfounded. Such a requirement, in addition to the present written objection which has to be lodged with the marriage officer, would in all probability also prove to serve as a further deterrent against unfounded objections to a marriage being lodged. It is therefore recommended that section 23(1) should be amended to make provision that the party raising objections against a marriage should also provide a copy of his or her objection in writing to the parties contemplating marriage. (See par 2.1.15.6 and 7)

It is recommended that besides the substitution of the term "conduct" in section 24(1) for the term "solemnize", sections 24(1) and (2) should remain unamended. This section prohibits a marriage officer from conducting the marriage of a minor if the required consent is not furnished to him or her in writing. (See par 2.1.16.8 and 9)

In view of the lack of comment on section 24A which regulates the consequences and dissolution of marriage for want of consent of parents or guardian, it would seem that the present provision is satisfactory. It is therefore recommended that the section should not be amended. (See par 2.1.17.4)

Section 25 which governs the position when consent of parents and guardians cannot be obtained to the marriage of a minor, seems satisfactory and it would seem that there is no need for amendment, except for the insertion of gender-sensitive terms. (See par 2.1.18.3)

The Commission considers, as the Department of Home Affairs does, that the minimum age for marriage (set out in section 26) should be 18 years of age for males and females. (See par 2.1.19.5 and 6)

Section 28 should make provision for the provincial or local division of the High Court to have jurisdiction to consent to a marriage between a man or a woman and the direct descendant of his or her deceased spouse if both parties have reached the age of 18 years and they are not related to each other by blood. The Commission considers that this provision should correspond to its provision setting out the minimum age for marriage for males and females to be 18 years of age. It is thought inadvisable to set any higher standard than the proposed age of 18 years for these cases. (See par 2.1.20.11 - 13)

Section 29(2) presently sets out the following places for the conducting of marriage ceremonies: churches, other buildings used for religious services, public places and private dwelling-houses with open doors. There are two options to be considered. In terms of the first option the range of places where marriages may be conducted would be less limited than is presently the case although they whould still be limited to some extent. This would require the deletion of the statutory requirement that parties be joined in marriage in a private dwelling with open doors and the addition of the words "or in any other building or facility used for conducting marriages". The second option is that there should not be any limitations at all with regard to places where marriages may be conducted. The Commission requests comment on these two options: should the range of places where marriages may be conducted limited or should there be no limitations? Should some limitations still be considered desirable, the Act should also provide for the validity of marriages conducted at places other than the appointed ones. (See par 2.1.21.32 - 33)

The suggestions made on the registration of marriages by the Department of Home Affairs (excluding the issue of customary unions) and the administrative procedures to be followed with regard to the registration of marriages seem persuasive and it is recommended that section 29A be amended as suggested by the Department of Home Affairs (although the references in the Department's provisions to customary unions should be deleted). (See par 2.1.22.2 - 4)

The marriage formula set out in section 30(1) should be amended by the deletion of the words "and thereupon the parties shall give each other the right hand". The proviso dealing with the validity of marriages where the requirement that the parties shall give each other the right hand has not strictly been complied with should also be deleted. It is considered that the retention of this part of the marriage formula is unwarranted. (See par 2.1.23.6)

There is no need to amend section 31 which governs the circumstances under which certain marriage officers may refuse to conduct certain marriages. (See par 2.1.24.6)

It is considered that section 32 which governs the payment of fees to marriage officers, should be retained. It is recommended that the section should be amended to refer to marriage officers as being male or female, and the reference to "a fine not exceeding one hundred rand or, in default of payment" should be deleted. The effect of the amendment will be that a contravention of the section will by punishable with imprisonment not exceeding six months, which is a more effective deterrent than a fine. (See par 2.1.25.5)

The question arises as to the need for the inclusion of section 33 in the Marriage Act (which governs the blessing of marriages) in view of section 34 of the Marriage Act (which governs the making of rules or regulations in connection with the religious blessing of a marriage). It can be argued that section 33 is superfluous in view of section 34. On the other hand it can be argued that section 34 merely governs the power of making rules and regulations whereas section 33 sets out the details of when a marriage may be blessed and by whom, and that there is therefore a need for the retention of section 33. The Commission considers that there is no need for the retention of section 33. (See par 2.1.26.3 - 4)

Section 34 section seems to be necessary to grant the power to religious denominations and religious organisations for the blessing of marriages and acceptance of fees by them for the blessing of marriages. The retention of this section therefore seems justified. (See par 2.1.27.4 - 5)

The question arises whether there is a need for section 35 in view of section 11 of the Marriage Act. Section 35 makes provision for penalties for conducting marriages contrary to the provisions of the Act. Section 11 makes it an offence for a marriage officer to purport to conduct a marriage which he or she is not authorised to conduct or which to his or her knowledge is legally prohibited. Marriages conducted by persons who are not marriage officers are similarly prohibited. It is therefore clear that section 11 is more restricted in its scope than section 35 since section 35 penalises the joining of parties in marriage in contravention of the provisions of the Marriage Act as a whole while the former enumerates only a few grounds of criminality. It would therefore seem that there is a need for retaining section 35 and no amendments are consequently recommended in regard to section 35. (See par 2.1.28.4 - 5)

It is recommended that section 36 which makes provision for penalties for false representations or statements should not be amended. (See par 2.1.29.5)

Section 37 makes provision for South African courts having jurisdiction to try persons who contravene the provisions of the Marriage Act in any country outside the Republic of South Africa. The Commission noted that there may be a number of offences parties may commit outside the geographical borders of South Africa in contravention of the provisions of the Marriage Act. One example is where a person who is already a party to a marriage contracts a second marriage in another country without obtaining a prior divorce and thereby committing the offence of bigamy. It should be possible under these circumstances to try the offender in South Africa. The Commission therefore considers that there is no need to amend section 37 besides the substitution of the term "Republic" for the term "Union". (See par 2.1.30.4 - 6)