The Department of Home Affairs has released a Draft Marriage Bill for public comment. The purpose of the Bill is to create a single Marriage Act that will regulate all types of marriages including civil marriages, customary marriages, same sex marriages and religious marriages.

The Bill broadly provides for:

• Requirements for entering into a marriage

• Registration of marriages

• Legal consequences of a marriage

• Consent to enter into a marriage

• Minimum age for  marriage

• Designation of marriage officers

• Solemnization of marriages

• Dissolution of marriages

Some of the problematic issues with the draft Bill include:

• It will adulterate the sanctity of Nikah by lumping it together with same sex marriages;

• Marriage before the age of 18 will be prohibited;

• Nikah may not  be solemnized by an Imam who is not a  registered Marriage Officer;

• The permission of the first wife will be essential when intending to entering into a subsequent marriage;

• The consequences of the dissolution of a marriage will be governed by the Divorce Act which is materially different from Islamic Law;

• Spouses in existing Nikah contracts will have 12 months after the promulgation of the Act to register their marriage with the Department of Home Affairs; which means that no one can opt to remain outside the ambit of the Act; and,

• A person other than a registered Marriage Officer who solemnizes a Nikah will be guilty of an offence which may result in the payment of a fine or imprisonment

The preservation of family law is central to the preservation of the identity of the Muslim community. The Draft Marriage Bill may potentially obliterate this identity and dilute the distinct ethos of family law in Islam.

The United Ulama Council of South Africa (UUCSA) with the assistance of its legal advisors is currently preparing its submission to the Department of Home Affairs. Members of the public are also urged to add their voices by making submissions to the Department of Home Affairs on or before the 31 August 2023. Submissions must be emailed to:

[email protected] or [email protected]