Authored By: Shaheeda Dangor
University of Witwatersrand
Introduction
South Africa possesses one of the world’s most constitutionally progressive legal systems, seeking to remedy the injustices and discrimination of the past by recognising and accommodating its diverse cultural and religious traditions. However, this commitment to inclusivity has resulted in a confusing and complex pluralistic marriage regime, in which multiple statutory frameworks co-exist and govern different forms of marriage.
A civil marriage is concluded under the Marriage Act; a customary marriage under the Recognition of Customary Marriages Act and a same-sex or opposite-sex civil partnership under the Civil Union Act. Religious marriages (largely Muslim marriages) gained legal legitimacy through a series of Constitutional Court judgments but are not governed by any statute. The result is a hierarchy of legal recognition in which marriages that conform to the traditional legal frameworks receive full protection, while others rely solely on piecemeal litigation. Coupled with the increasing number of unmarried intimate partnerships, this underscores the urgent need for a coherent and comprehensive legal framework.
Recognising the marriage dilemma, the Department of Home Affairs responded by introducing the Green Paper on Marriages in South Africa in 2021, a policy recommendation proposing the adoption of a Single Marriage Act. This proposal was subsequently developed into the White Paper on Marriages in South Africa in 2022, culminating in the introduction of the Marriage Bill before Parliament in 2023. Although the Bill has continued to progress through the legislative process, including provincial public hearings as recently as February 2026, it has yet to be enacted. Its implementation is delayed due to political challenges as well as objections raised by various religious organisations and the provinces.
This article argues that South Africa’s pluralist marriage framework has reached the limits of what can be remedied through case-by-case constitutional litigation. It first examines the current legal status of marriages, with particular focus on religious marriages, and evaluates the increasing prevalence of unmarried intimate partnerships. It then critically assesses the prospects of the Marriage Bill being enacted into law by considering whether a unified matrimonial statute can effectively accommodate the diversity of South Africa’s marriage systems and partnerships. Thereafter, before concluding, the article briefly engages with comparative perspectives to strengthen the case for the Bill’s enactment. Ultimately, the article supports the adoption of a Single Marriage Act and emphasises the need for an integrated order governing marriage law.
The Need for Reform
The Current Statutory Framework
At present, civil marriages, civil unions and customary marriages are all regulated by statutes. Although aspects of these statutes have been challenged on constitutional and other legal grounds, they still afford married couples comprehensive legal protection and access to matrimonial benefits. By contrast, marriages concluded exclusively in accordance with religious rites remain largely unregulated by legislation, receiving legal recognition only when courts are prompted to extend safeguards in their judicial decisions.
The most significant of these decisions was in the Women’s Legal Centre Trust v President of the Republic of South Africa case. The Constitutional Court confirmed that the Marriage Act and the Divorce Act were inconsistent with sections 9 (equality), 10 (dignity), 28 (children’s rights) and 34 (access to justice) of the Constitution because they failed to legally recognise Muslim marriages. Parliament was ordered to rectify the defect within 24 months. The judgment expressly left the form of legislation to Parliament, acknowledging that the state could either enact a discrete statute for Muslim marriages or incorporate such marriages into a comprehensive omnibus law. That period has since been extended more than once, most recently to 27 June 2026, with Parliament now seeking a further extension of up to twelve months to finalise the Marriage Bill. Hindu marriages remain in a similar position, recognised by no dedicated statute and dependent on the same interim relief by extension. Consequently, women in these religious marriages continue to remain vulnerable to unilateral termination, arbitrary deprivation of property, and lack of maintenance upon dissolution. This underscores the urgent need for a more effective mechanism of reform.
Fragmentation in Marriage Law
Two features of the marriage litigation history require particular emphasis. First, each case addresses a distinct marriage or partnership form as a separate constitutional issue, resulting in a reactive and uneven body of law where relief is tailored to the individual circumstances of the applicants rather than the structure of the system. Second, each remedy depends on Parliament’s willingness to legislate within a suspension period, and Parliament has repeatedly failed to meet the deadlines. For instance, the Divorce Amendment Act dealt only with the specific defects flagged in the Divorce Act, while the broader Marriage Bill remains before Parliament’s Portfolio Committee on Home Affairs more than two years later.
Such fragmented development creates uncertainty regarding divorce, succession, maintenance and matrimonial property consequences. It also burdens vulnerable spouses with extensive litigation costs in their pursuit of constitutional protection. Instead of achieving the desired harmonisation, litigation has produced an accumulating set of exceptions to the law.
Evidently, maintaining separate marriage statutes creates unnecessary complexity without producing meaningful legal differences between recognised marriages. Instead of reflecting genuine pluralism, fragmentation often results in inconsistent administration and unequal legal security. The current model also perpetuates inequality by requiring different categories of couples to rely upon different legislation despite enjoying substantially identical constitutional rights. As such, separate legislative regimes risk symbolically reinforcing distinctions between relationships that the Constitution seeks to recognise and protect equally.
Domestic Partnerships and the Gap in Legal Protection
Another major shortcoming of the current framework is the continued absence of comprehensive legislation regulating domestic partnerships. Statistics show a decline in the proportion of individuals who are legally married, from 29.9% in 2011 to 24% in 2022, while an estimated 7.8% of South African couples live together without marrying for financial, cultural, religious, or personal reasons. Despite the growing prevalence of unmarried relationships, cohabitants generally do not enjoy the automatic legal rights afforded to married spouses, particularly in relation to maintenance, inheritance and the division of property upon the termination of the relationship. The Draft Domestic Partnerships Bill, first introduced in 2008 but never enacted, sought to address these deficiencies by recognising both registered and unregistered domestic partnerships. Although the Bill has not progressed, it remains widely regarded as an essential component of future family law reform.
It is against this backdrop that the proposed Marriage Bill assumes particular significance. Section 9 of the Constitution not only prohibits direct discrimination but also imposes a positive obligation on the state to achieve substantive equality. If Parliament enacts the Marriage Bill, this will resolve the criticism of the formal hierarchy, ensuring that no category of marriage derives its legal validity from suspended declarations of constitutional invalidity or interim reading-in remedies. Moreover, all recognised marriages and partnerships will derive their legal status from a single legislative framework. The question, however, is whether the Bill can achieve this objective.
The Structure and Challenges of a Single Marriage Act
SALRC and the Single Marriage Act Model
The South African Law Reform Commission (SALRC) has long favoured a Single Marriage Act model, imposing uniform requirements and consequences across all marriages, as opposed to an omnibus statute that merely consolidates separate regimes under one legislative umbrella. The Marriage Bill currently before Parliament reflects this aspiration toward uniformity, while retaining a degree of flexibility by extending recognition to marriages and intimate partnerships, and by providing certain forms of legal protection to relationships without fully regulating their consequences.
There are only three basic requirements: both parties must be 18 years or older (child marriages are prohibited), both must freely consent to the union (arranged marriages are excluded), and both must have the legal capacity to understand the nature and consequences of the relationship.
From an administrative perspective, consolidation would simplify marriage registration, reduce duplication, and enhance legal certainty. A single legislative framework would also eliminate unnecessary distinctions between civil, customary and same-sex marriages while still respecting the diverse methods of solemnisation.
Public Participation and Legislative Objections
However, law reform in this area must proceed with caution. Customary and religious marriages possess unique cultural characteristics that risk being undermined by excessive legal standardisation. A customary marriage, for instance, involves the transfer of lobolo and proceeds through a series of negotiated social processes. Similarly, the requirement of judicial dissolution for Muslim marriages may be contested within the Muslim community, where a talaaq is regarded as a fundamental religious prerogative. In addition, any comprehensive reform must address the position of domestic partnerships by creating statutory mechanisms that recognise reciprocal support relationships irrespective of formal marital status.
Nationwide public hearings on the passing of the Marriage Bill, which concluded in February 2026, reveal sharply divergent submissions. Some communities sought validation of customary practices not currently accommodated by the Bill, including marriages within certain Bapedi communities. Faith-based organisations called for stronger conscience shielding for marriage officers, and other submissions challenged both the proposed minimum marriageable age and the Bill’s framing of polygamous marriages as exclusively polygynous. The Bill’s default community of property regime has also been criticised as potentially ill-suited to polygynous households. While the requirement of a court-sanctioned contract for polygynous marriages represents a pragmatic compromise, it does not fully resolve the complexities of valuing and dividing assets within multi-spouse households, particularly where prior marital property regimes already exist.
Notably, these objections are not, for the most part, objections to unification itself, but rather to the manner in which unification has been drafted. This is important because a single statute may fail due to poor drafting without necessarily demonstrating that pluralism is the preferable model. By contrast, leaving each excluded community to litigate its way into recognition, as the Muslim, customary, and same-sex communities have each been compelled to do, has already largely resulted in delayed outcomes and expensive litigation.
Advantages and Supporting Mechanisms
Despite these concerns, the potential benefits of harmonisation remain substantial. A single statute would eliminate the current forum-shopping that allows parties to manipulate the system by choosing the statutory regime most favourable to them, often to the detriment of their vulnerable spouses. It would establish a coherent set of rules governing marriage validity, matrimonial property, dissolution, and succession, thereby improving accessibility and legal certainty for both citizens and practitioners. To give proper effect to these objectives, Parliament should invest in registration infrastructure, public legal education, and legal aid services to ensure that spouses are fully informed before entering marriage.
This should be complemented by a streamlined mechanism for postnuptial changes to matrimonial property regimes, applicable where both spouses apply jointly, have received independent legal advice, have made full financial disclosure, and have notified creditors. This process would preserve the protective scrutiny that the law rightly demands, while making the option available to the thousands of South Africans who genuinely and jointly wish to structure their marriage property affairs.
Comparative Perspectives
Kenya
South Africa is not the only country struggling with the interaction between multiple marriage arrangements. Other African jurisdictions with a history of legal pluralism have faced similar challenges, and some have developed approaches that may help to inform South Africa’s reform process.
Kenya’s Marriage Act is one of the most developed examples of a unified marriage statute on the African continent. Enacted after a lengthy law reform process, the Act consolidated the law governing civil, Christian, customary, Hindu, and Muslim marriages into a single legislative framework. It recognises all five systems as valid forms of marriage, each with its own formalities and registration requirements, while subjecting them to a common set of rules governing matrimonial property, divorce, and maintenance.
The Kenyan experience demonstrates that a single marriage statute can reduce litigation and enhance protection for spouses. It is not, however, a utopian model; it is a practical and workable one that adapts where necessary. It illustrates that legal pluralism can be accommodated within a unified statutory framework, allowing space for Christian, customary, Hindu, and Muslim marriages while providing the clarity and consistency necessary to avoid the type of sequential-marriage disputes that have arisen in South Africa.
Ghana.
Ghana, by contrast, reveals the difficulties that arise in the absence of a harmonised legislative framework. Ghanaian law recognises customary, ordinance (civil), and Islamic marriages, each under distinct statutory and common law regimes. Where parties conclude a customary marriage and subsequently enter into an ordinance marriage, courts are often required to determine which legal regime governs the property consequences of the relationship. This produced inconsistent and unpredictable outcomes, while the absence of a clear statutory structure regulating sequential marriages has given rise to significant litigation and criticism.
International Standards
Furthermore, the Committee on the Elimination of Discrimination against Women (CEDAW) has repeatedly highlighted the challenges posed by legal pluralism in marriage law. CEDAW has recommended that states adopt measures ensuring that women in customary and religious marriages are fully informed of their property rights, and that any agreement altering those rights be subject to appropriate safeguards, including independent scrutiny. A single marriage statute incorporating independent legal advice, full financial disclosure, and a cooling-off period alongside regulated postnuptial variation mechanisms would give direct effect to these recommendations.
Conclusion
This article examined the current legal framework governing marriage law in South Africa and demonstrates why comprehensive legislative reform is imperative. It then critically analysed the Marriage Bill, revealing that although several legitimate concerns exist regarding aspects of its drafting, these concerns do not undermine the broader case for legislative unification. Comparative insights further demonstrate that a single statutory regime can accommodate legal pluralism while promoting legal certainty, consistency, and substantive equality. Conversely, jurisdictions that have failed to harmonise competing marriage regimes continue to experience uncertainty, erratic outcomes and avoidable litigation.
The real-world stakes are considerable. If the Bill lapses or is further delayed beyond the extension Parliament has sought, individuals in religious marriages and unmarried intimate partnerships will remain dependent on judicially improvised text rather than a statute drafted with their circumstances in mind. Equally, if the Bill is rushed through without resolving the objections raised in the public hearings, it risks reproducing the very pluralism and inconsistency it was designed to end.
Ultimately, there is no guarantee that a Single Marriage Act will resolve, rather than relocate, the disjunction between South Africa’s co-existing marriage systems. Yet its broad definition of marriage and its systematic approach to validity, property, and dissolution represent a genuine advance on thirty years of remedial litigation.
When South Africa finally adopts a single marriage statute that provides that a valid marriage creates one legal relationship, that the matrimonial property regime is fixed upon its conclusion, and that any variation is subject to a fair and accessible process, the law will better reflect the lived realities of millions of South Africans.
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Reference(S):
Constitution
Constitution of the Republic of South Africa, 1996.
Case Law
Women’s Legal Centre Trust v President of the Republic of South Africa [2022] ZACC 23.
VVC v JRM and Others [2026] ZACC 2.
Yaotey v Quaye [1961] JELR 80714 (HC).
Legislation
Civil Unions Act 17 of 2006
Divorce Act 70 of 1979
Divorce Amendment Act 1 of 2024
Ghana’s Marriage Act 1884–1985 (Cap. 127)
Kenya’s Marriage Act 14 of 2014
Marriage Act 25 of 1961
Recognition of Customary Marriages Act 120 of 1998
Books
Johan D van der Vyver, ‘Multi-Tiered Marriages in South Africa’ in Joel A Nichols (ed), Marriage and Divorce in a Multi-Cultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion (Cambridge University Press 2012).
Journal Articles
Elsje Bonthuys, ‘Legal Pluralism in South Africa: The Implications of Co-Existing Customary and Civil Marriages’ (2024) Legal Pluralism and Critical Social Analysis 51.
Jamil Ddamulira Mujuzi, ‘Dissolving a Muslim marriage in South Africa and the right to freedom from discrimination: The talaaq v. the Divorce Amendment Act (2024) “routes” in the context of H.A v N.A (February 2025)’ (2026) International Journal of Discrimination and the Law 1.
Michael Nyongesa Wabwile, ‘Human Rights and Family-Policy Issues under Kenya’s Marriage Act of 2014’ (2017) Africa Journal of Comparative Constitutional Law 67.
Yüksel Sezgin, ‘Undignified Jurispathy: Muslim Family Law at Ghanaian Courts’ (2023) Law & Social Inquiry 1303.
Government papers and policies
Department of Home Affairs, White Paper on Marriages in South Africa (5 May 2022), Problem statement 6.
Law Commission papers
SALRC Project 144: Discussion Paper 152: Single Marriage Statute [2021] ZALRC 10.
Miscellaneous
Committee on the Elimination of Discrimination against Women, General Recommendation No 33 on women’s access to justice (2015) UN.
Department of Home Affairs, Responses to Public Hearings on the Marriage Bill [B43–2023] (Presentation to the Portfolio Committee on Home Affairs, 16 March 2026).
Parliament of South Africa, Media Statement: Home Affairs Committee Concludes Nationwide Public Hearings on Marriage Bill (6 February 2026).
Portfolio Committee on Home Affairs, Marriage Bill: Public Hearings Report; Electoral Matters Amendment Bill: IEC Briefing; with Deputy Minister (Parliamentary Monitoring Group, 3 March 2026).
Single Marriage Bill [B12–2023].
Statistics South Africa, Census Marital Status, 2022 (Pretoria, 2023).
