Could a single marriage bill be an equaliser?
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30 June 2021 marks the deadline for public comment on the Green Paper on Marriages. The paper aims to work towards the development of a new Single Marriage Bill that addresses marginalised communities and ensures all citizens are protected. A vital step towards equality according to Moremadi Mabule, Head of Wills Operations at Sanlam Trust.
Mabule explains that South Africa’s current marital laws are problematic as we have a diverse community, but non-traditional marital regimes are not recognised. There are ground-breaking cases currently in the courts that will lead to Hindu and Islamic marriages being recognised, just to name a few – vital for a democratic country.
The dissolution of marriages, matrimonial property rights and the distribution of assets in terms of intestate succession are also addressed, notes Mabule. Intestate succession comes into effect when a person dies, and no valid will can be found. Under this law only certain people can inherit e.g., children, parents and a spouse as recognised by the Marriage Act of 1961. This has proven to be problematic as it excludes those in non-traditional marriages as well as cohabiting couples who make up more than 3.5 million South Africans.
The Paper also aims to abolish child marriages by proposing that all citizens can get married once they are 18 years old. Currently a person under the age of 18 can get married with the consent of a parent or guardian. It also aims to improve equality by enabling people of all sexual orientations, races, and cultures to marry freely without the limitations of the law.
The concept of polyandry – where a woman is allowed to marry more than one husband – has also been introduced in the Green Paper. While the topic has received mixed reactions, the introduction seeks to enable all people, irrespective of their gender, to practice their choice of marriage. Mabule believes this is good for the purposes of equality and the promotion of constitutionalism. She does however caution those considering polyandry or polygamy to ensure they protect their spouses and children from multiple relationships as this can lead to lengthy disputes when it comes to the distribution of assets.
“To have all marital regimes recognised by law will act as an equaliser in our diverse country. Whether you are in a monogamous marriage or considering a polyandry or polygamous marriage, it is advisable to seek professional assistance in drawing up a valid will and an estate plan that will protect your spouse (or spouses) and children,” concludes Mabule.