South Africa’s Marriage Bill must truly protect women and girls

The Portfolio Committee on Home Affairs engages residents in Limpopo during the final round of national public hearings on the Marriage Bill. Photo credit: Parliament of the Republic of South Africa

On a weekday morning in Tafelkop, a small community in Groblersdal in Limpopo Province, South Africa, residents, civil society representatives, and community leaders are gathered at the Apostolic Faith Mission hall for the final leg of South Africa’s provincial public hearings on the Marriage Bill B 43-2023. For many attendees, this was a rare opportunity to speak directly to lawmakers about laws that shape the most intimate dimensions of their lives.

Parliament’s Portfolio Committee on Home Affairs has been conducting these hearings across all provinces in South Africa, and Limpopo’s session marked the close of that nationwide consultation. The Marriage Bill, introduced in the National Assembly in December 2023, is a piece of proposed legislation that aims to consolidate South Africa’s three marriage laws, the Marriage Act of 1961, the Recognition of Customary Marriages Act of 1998, and the Civil Union Act of 2006, into a single framework that is constitutional and reflective of the country’s diverse communities.

Why South Africa’s Marriage laws need reform to protect women and girls

South Africa’s marriage laws have long needed an overhaul. Under the current legal framework, the minimum age of marriage varies depending on which statute applies, an incoherence that has left children, particularly girls, vulnerable. The current Marriage Act allows minors to marry with parental consent and girls under 16 years old to marry with the consent of the Minister of Home Affairs. The Recognition of Customary Marriages Act sets the minimum age of marriage at 18, yet it contains similar exceptions allowing minors to marry with the permission of the Minister.  Minors are not allowed to marry under the Civil Union Act.

The proposed Marriage Bill seeks to address this conflicting framework by setting the minimum age of marriage at 18 for all marriages, with no exceptions, bringing South Africa closer in line with constitutional principles and regional and international human rights obligations.

The 2016 Community Survey results from Statistics South Africa indicate that more than 91,000 girls aged 12 to 17 are married, divorced, widowed, or living with a partner. In 2022 alone, more than 335 girls were married before the age of 18. These figures are likely underestimates, as many marriages, particularly customary and religious unions, remain unregistered.

Women in religious marriages are at risk

At the same time, religious marriages, including Muslim, Hindu, Jewish, and Khoi-San marriages, have historically lacked full legal recognition, leaving women particularly vulnerable to financial insecurity in the event of divorce or the death of a spouse. The 2022 Constitutional Court ruling in Women’s Legal Centre Trust v President of the Republic of South Africa made it clear that the existing framework is inconsistent with the Constitution and ordered Parliament to reform the legislation to ensure equal protection and dignity for all spouses.

The Bill’s move to recognise religious marriages is a matter of constitutional equality and basic dignity. This would augment the country’s commitment to equal legal status and capacity for all spouses, a provision that could meaningfully shift power dynamics within marriages, particularly for women in polygamous households.

Key provisions Equality Now supports in South Africa’s Marriage Bill

Equality Now welcomes the Marriage Bill’s ambition and its clear commitment to setting 18 as the minimum age of marriage with no exceptions. The reform will bring South Africa closer to fulfilling its obligations under the United Nations Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Maputo Protocol, and the African Charter on the Rights and Welfare of the Child (ACERWC). Crucially, it also brings South Africa closer into alignment with the SADC Model Law on Eradicating Child Marriage and Protecting Children Already in Marriage, which prohibits marriage under 18, regardless of whether the union is statutory, religious, customary, or verbal.

Setting the minimum age to 18 with no exception is a significant step forward. However, Equality Now emphasises the need for the legislation to provide protection for girls already in child marriages. These should include clear safeguards for their accrued marital entitlements, custody rights,  proprietary rights despite being in a voidable marriage, as well as legal remedies that allow girls to annul a child marriage even if it was legally entered before the passage of the new law.

Community perspectives on South Africa’s Marriage Bill

Community members present at the hearing spoke from lived experiences; of daughters married off young, of women left with nothing after customary marriages ended, of religious leaders trying to navigate between faith and law.

Listening to these stories, it became clear that this debate is not really about legislation. It is about the futures of girls growing up in communities like Tafelkop.

Seven of the sixteen SADC member states have enacted laws setting the minimum age of marriage at 18 without exception, including Zambia, which did so as recently as 2023. Namibia has also recently taken steps to raise the marriage age to 18 through the Marriage Act 2024 (though it has yet to come into force). South Africa has the legal architecture, the constitutional framework, and now, with this Bill, the legislative opportunity to become a regional leader in ending child marriage and protecting the rights of women in all forms of union.

Next steps for South Africa’s Marriage Bill to protect women and girls

As Parliament now reviews submissions from across the country, it faces an important choice. The Marriage Bill can either preserve gaps that continue to leave girls vulnerable, or it can become a law that truly reflects South Africa’s constitutional promise of dignity and equality.

With the right amendments, this Bill can ensure that every girl in South Africa is protected by a marriage law that puts her rights, safety, and future first.