Authored By: Regomoditswe Phala
University of Pretoria
Introduction
Ironically, while the acknowledgement of Customary law is Constitutionally valid, certain aspects of Customary Law remain inconsistent with International and Constitutional principles. The Institution of Marriages in South Africa continue to be controversial and the controversy sparks more on the issue of minimum age for marriage as the current law in South Africa states that the minimum age for marriage is 18 for boys and 15 for girls through consent from parents and the state[1]. The principles are of common and customary law origin and have been made official in South Africa[2].
This Article argues that section 5(1) of the Marriage Bill is constitutional valid as it aligns with international law principles of human and children rights [3].The section outlines that the minimum age for marriage should be 18 in South Africa as it would promote Equality and best interest of children. It will examine the legal framework of South African Law in relation to marital age and analyze the statutory provisions governing marital age of the Marriage bill and critically evaluate whether those proposed reforms are indeed in the best interest of justice and children[4].
The existing legal framework
The current legal framework surrounding marriages is divided into various statutes namely the Marriage Act, Recognition of Customary marriages Act and the Civil Union Act which all govern different familial structures. This divided framework created legal uncertainty and inconsistencies regarding the minimum age of marriage as the Marriage Act and Recognition of Customary Marriage Act allow minors to get married with consent from their parents and in certain circumstances consent from the Minister of Home Affairs[5]. The statutory provisions are in violation of certain sections of the Constitution such as section 9, which promotes Equality and section 10 which promotes dignity, and section 28 which establishes that the best interests of children are of paramount importance[6].
South Africa is also regulated by the Convention on the rights of the child and the African Charter on the Rights and Welfare of the Child which encourages the protection of the rights of children above all others, The conventions also promote the minimum age of 18 for marriage, this is clear that the current legal framework violates and fail to protect the rights of children in terms of minimum age for marriage[7].The minimum age for marriage according the South African legal framework is not an indignity for children as it allows forced marriages but its also an inequality as the ages for boys and girls are different and most importantly it does not prioritize the best interests of children as demanded by the Constitution of South Africa and International obligations[8].
The Marriage Bill Analysis
What the Marriage Bill proposes is subject to years of criticism of the matrimonial pluralistic system in South Africa, it represents a great reform as it consolidates all the matrimonial statutes in one Act[9]. One significant reform in the Marriage Bill is the shift from the current minimum age for marriage to 18 years for everyone this is subject to ongoing tension between the international conventions which advocate for the minimum age of 18 for marriage and the Constitution which Promotes equality, dignity and protection of the best interest of children against the cultural/religious and customary values which have been practiced in South Africa[10].
The bill seeks to correct uncertainties caused by the various matrimonial systems and align the minimum age of marriages to the international standard in which South Africa abides by[11]. The proposed reforms reflect the eagerness to prioritize Constitutional alignment in terms of section 9,10,15 and 28 of the Constitution as by prohibiting the marriages for persons under 18 will prevent the possibility of forced marriages and child marriages in South Africa and give practical effect to the constitutional provisions listed[12]. Section 5 of the Marriage bill will also allow individuals to get married upon acquiring full legal capacity and maturity instead of relying on parental consent[13]. Despite the Marriage Bill being accepted constitutionally and by the public, its impact on cultural and religious practices regarding minors has been debated and this raises an important question regarding the balance of the Constitutional provisions, which will be further discussed in the analysis to follow[14].
Critical Analysis
The criticism regarding minimum age of marriage is valid in the eyes of justice and morality, as the Constitution places the rights of children ahead in matters of involving children. Certain provisions in the marital statutes allow parents/guardian and/or consent from the home affairs or courts to serve as a proxy for the “best interest” of the child, but in some cases serve as premature judgement as measures are not usually taken to ensure whether the marriage is in the best interest of the child. The consent of the parent is seen as a risk factor rather than a legal safeguard for the child’s interest and the recommendation to establish the minimum age of marriage to 18 is the ultimate remedy to ensure the protection of children[15].
The establishment of eighteen years as the minimum legal age for marriage would not be something new for South Africa as the Civil Union Act set the minimum age to 18[16], it would be more appropriate if the age for marriage was uniform in all instances of the law as this would not only bring about legal certainty but would promote equality and uphold the best interests of the child[17]. Many critics argue that the establishment would limit the cultural and religious practices protected by sections 15,30 and 31 of the Constitution under customary practices such as ukuthwala which treat puberty as the marriageable age[18], but one may argue that the customary law sections are conditional to the bill of rights and simply the right to equality and the promotion of the best interest of children is paramount[19].
The constitutional tension might lead to scrutiny as the traditional practices are to be protected by the Constitution, but nonetheless the age of marriage being under 18 does more harm than good, and the Marriage bill does not go about challenging the cultural and religious practices of marriage [20],and simply seeks to establish a uniform legal age for marriage that would be in line with the Constitution and would align South Africa with the international legal stand regarding the legal age for marriage as in accordance with the Convention on the rights of the Child, CEDAW and the African charter on the Rights and Welfare of the Child. Mwambene’s criticism suggests that the establishment of 18 as the legal age to marry would not necessarily counter the problems of child and forced marriages as broader issues such as poverty and rural enforcement must be addressed[21].As she terms “the law that sets 18 as a bright line but is not accompanied but not accompanied by enforcement capacity risks becoming paper law”[22]. The inclusion of the provision establishing 18 as the legal age could be simply added as a provision in the Children’s Act to avoid rising conflict[23].
Conclusion
The proposal of the Marriage Bill represents a significant step towards the reform that has daunted the South African Matrimonial System for decades by establishing a uniform eighteen years minimum age threshold for marriage with absolutely no exception[24]. The reform represents a necessary shift required to correct the inconsistencies within the matrimonial framework and aligns it with the constitutional values of Equality, dignity and paramountcy of the best interests of the child [25] furthermore it aligned the framework with the international standards of protecting child rights and eradicating child and forced marriages[26].
While the shift is constitutionally justifiable, many argue that it violates the constitutionally protected religious and cultural practices, as this article has elaborated the Marriage bill is does not mean to challenge any cultural or religious practices but simply wants to do as the Constitution state which is putting the best interests of the child ahead of others. The protection of children is an imperative that cannot be compromised by practices that may pose harm to children [27].The legislator has proved through the enactment of the Civil Union Act that it is possible through raise the minimum age of marriage to 18[28],therefore the establishment of the 18 threshold is both constitutionally valid and socially acceptable and necessary as it would promote legal certainty and strengthen protection of children’s rights, it can be argued that simply adding a provision into the Children’s Act would have solved the issue but, in order to eradicate the issue of forced and child marriage there are broader issues that need to be addressed ,but as we stand the establishment of 18 as the matrimonial age is a significant step towards that goal[29].
Reference(S):
Legislation
Children’s Act 38 of 2005
Civil Union Act 17 of 2006
Constitution of the Republic of South Africa, 1996
Marriage Act 25 of 1961
Marriage Bill B43‑2023
Recognition of Customary Marriages Act 120 of 1998
International instruments
African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November 1999) OAU Doc CAB/LEG/24.9/49
Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13
Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3
Committee on the Elimination of Discrimination against Women and Committee on the Rights of the Child, ‘Joint General Recommendation No 31 of the Committee on the Elimination of Discrimination against Women/General Comment No 18 of the Committee on the Rights of the Child on Harmful Practices’ (CEDAW/C/GC/31‑CRC/C/GC/18, 14 November 2014)
Journal articles
L Mwambene, ‘Recent legal responses to child marriage in Southern Africa: the case of Zimbabwe, South Africa and Malawi’ (2018) 18(2) African Human Rights Law Journal 527
Reports and online resources
Centre for the Study of Violence and Reconciliation, ‘The new marriage bill and its implications in South Africa’ (29 September 2023) <https://csvr.org.za/the-new-marriage-bill-and-its-implications-in-south-africa/> accessed 5 August 2026
Girls Not Brides, ‘South Africa’ (Child Marriage Atlas) <https://www.girlsnotbrides.org/learning-resources/child-marriage-atlas/regions-and-countries/south-africa/> accessed 5 August 2026
Journal Article/ Academic commentary
Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13
Lea Mwambene, ‘Recent Legal Responses to Child Marriage in Southern Africa: The Case of Zimbabwe, South Africa and Malawi’ (2018) 18 African Human Rights Law Journal
CSVR, ‘The new marriage bill and its implications in South Africa’ (CSVR, 29 September 2023)
Girls Not Brides, ‘South Africa’ (Child Marriage Atlas.
Recent legal responses to child marriage in Southern Africa: The case of Zimbabwe, South Africa and Malawi’ (2018) 43(2) De Jure
Committee on the Rights of the Child, ‘General Comment No 18’ (co-issued with CEDAW as a Joint General Recommendation/Comment No 31/18) UN Doc CEDAW/C/GC/31-CRC/C/GC/18 (2014)
Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577
[1] Marriage Act 25 of 1961, s 26(1)
[2] Recognition of Customary Marriages Act 120 of 1998, s 3(1)
[3] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 1
[4] Committee on the Rights of the Child, ‘General Comment No 18’ (co-issued with CEDAW as a Joint General Recommendation/Comment No 31/18) UN Doc CEDAW/C/GC/31-CRC/C/GC/18 (2014)
[5] L Mwambene, ‘Recent legal responses to child marriage in Southern Africa: The case of Zimbabwe, South Africa and Malawi’ (2018) 18(2) African Human Rights Law Journal 527
[6] The Constitution of the Republic of South Africa, 1996
[7] Committee on the Elimination of Discrimination against Women and Committee on the Rights of the Child, ‘Joint General Recommendation No 31 of the Committee on the Elimination of Discrimination against Women/General Comment No 18 of the Committee on the Rights of the Child on Harmful Practices’ (CEDAW/C/GC/31-CRC/C/GC/18, 14 November 2014)
[8] Girls Not Brides, ‘South Africa’ (Child Marriage Atlas) <https://www.girlsnotbrides.org/learning-resources/child-marriage-atlas/regions-and-countries/south-africa/> accessed 5 August 2026
[9] Centre for the Study of Violence and Reconciliation, ‘The new marriage bill and its implications in South Africa’ (29 September 2023) <https://csvr.org.za/the-new-marriage-bill-and-its-implications-in-south-africa/> accessed 5 August 2026.
[10] Portfolio Committee on Home Affairs, National Assembly, Marriage Bill: public hearings’ (Parliamentary Monitoring Group, 2 December 2025) <https://pmg.org.za/committee-meeting/42187/> accessed 5 August 2026
[11] Ibid 2
[12] [12] The Constitution of the Republic of South Africa, 1996 s9-28
[13] Marriage Bill [B43–2023] (South Africa), cl 5(1)
[14] Lea Mwambene, ‘Recent Legal Responses to Child Marriage in Southern Africa: The Case of Zimbabwe, South Africa and Malawi’ (2018) 18 African Human Rights Law Journal 527, 543, 548–549
[15] Committee on the Elimination of Discrimination against Women and Committee on the Rights of the Child, ‘Joint General Recommendation No 31 of the Committee on the Elimination of Discrimination against Women/General Comment No 18 of the Committee on the Rights of the Child on Harmful Practices’ (CEDAW/C/GC/31-CRC/C/GC/18, 14 November 2014)
[16] Civil Union Act 17 of 2006, s1
[17] The Constitution of the Republic of South Africa, 1996 s9- 28
[18] Ibid s15-31
[19] Ibid s28
[20] Marriage Bill [B43–2023] (South Africa), cl 5(1), read with Constitution of the Republic of South Africa, 1996, s 28(2).
[21] Mwambene (n 1) 553-554
[22] Ibid 548
[23]Children’s Act 38 of 2005, section 12(2)
[24] Marriage Bill [B43–2023] (South Africa), cl 5(1)
[25] The Constitution of the Republic of South Africa, 1996 s9, s10 and s28
[26] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 1; Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13, art 16(2); African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November 1999) OAU Doc CAB/LEG/24.9/49, art 21(2).
[27] Constitution, 1996 (n 25) s 28(2)
[28] Civil Union Act 17 of 2006 (South Africa) s 1
[29] Mwambene (n 1) 553–554.
