The State should get out of the marriage business
I recently posted the following paper for discussion in the Christianity and Society forum.
Marriage in South Africa
Marriage and other social and domestic partnerships
Dr Stephen Hayes
The Constitutional Court in South Africa has ruled that the
Marriage Act is unconstitutional, because it does not make
provision for marriage of persons of the same sex.
There has therefore been a proposal that legislation should be
amended to make provision for this.
The purpose of this paper is to suggest that the Marriage Act be
repealed altogether, and that marriage should cease to be the
concern of the State, but should for the most part be dealt with
by civil society.
One of the main concerns that has led to calls for changes to the
present system is the need for clarity about legal status and
inheritance. In this paper I suggest that these can be dealt with
by new legislation for the registration of social and domestic
partnerships of various kinds.
2 Social & domestic partnerships
Marriage is one of several kinds of social and domestic part-
nerships that can be found in society, and existed in most
societies long before there was any state regulation of it. In
some societies it has religious dimensions, but different
religions have different views about it.
2.1 Different views of marriage
For some, marriage is a union of two people of different sexes.
For others, it can involve more than two people. In both these,
however, one of the purposes of marriage has been the procreation
of children, and this has given marriage a legal and social
dimension with regard to such matters as inheritance. One of the
legal consequences of marriage has been that the parties to a
marriage become “next of kin” to each other. This is important
for such things as intestate succession, and rights of visiting
in hospital when one of the parties is seriously ill, etc.
Because South Africa is a multicultural country, there are many
different views of what constitutes marriage, and any attempt by
the State to regulate marriage too closely will cause dis-
satisfaction among some groups.
2.2 Other social and domestic partnerships
There have been various other kinds of social and domestic part-
nerships that have not enjoyed the legal recognition of marriage.
If the Marriage Act were to be repealed, there should be new
legislation provide for marriage and other social and domestic
partnerships to have similar legal consequences to those that
marriage has had in the past.
Such partnerships include (but are not necessarily limited to)
* Monogamous marriage
* Polygamous marriage
* Unions of two people of the same sex
* Unions of two or more people of the same or different
* Long-term communities, such as monasteries
* Unmarried siblings who live together
New legislation could provide for the registration of such part-
nerships and spell out some of the legal consequences, which
could, in some cases, be varied as the legal consequences of
marriage can now be varied by ante-nuptial contract.
Registration should be a secular, neutral process, like the
registration of births and deaths. There are no religious birth
or death registration officers. Social and domestic partnerships
should be registered in the same way, and their dissolution, if
it occurs, could be registered in the same way. Provision could
be made, in cases where it might be desirable, for the Master of
the High Court to supervise the winding up of estates of
dissolved partnerships, as is now done for the estates of
deceased, insolvent or mentally incapacitated persons.
Religious or cultural ceremonies could be held to inaugurate any
of these partnerships, some of them, or none of them, Such
ceremonies should not be a prerequisite or a necessary con-
sequence of registration, though evidence that people had par-
ticipated in such a ceremony could, where appropriate, be taken
as evidence that they intended to register their partnership.
Religious and cultural groups should not be obliged to perform
ceremonies in connection with any or all of these partnerships,
nor to approve of all such partnerships, and should be entitled
to urge their members not to participate in some forms of
partnership that they regard as undesirable.
3 Conclusion and recommendations
I therefore suggest that the State should withdraw from the
marriage business altogether, and leave it up to different groups
in civil society, whether religious or cultural, to determine
what marriage is for their members, and what kinds of part-
nerships are acceptable or unacceptable for their members. There
should be no religious “marriage officers” in religious groups
who perform marriage ceremonies on behalf of the state.
The Marriage Act should be repealed, and replaced by legislation
providing for the registration of various kinds of social and
domestic partnerships, and for the legal consequences of such
This post has been linked to the Synchroblog for October 2010: Same-sex marriage synchroblog | Khanya. Click on the link to see the other posts in the synchroblog.