On 4 May 2021, the Department of Home Affairs published a new Green Paper for the Marriage Act. A Green Paper is the process of making a law that begins with a discussion document. This is drafted in the Ministry or department dealing with the particular issue in order to indicate contemplated legislation. It is then published so that anyone who is interested, can give comments, suggestions and ideas on the new proposed law.
One of the proposals in the Government Gazette is the recognition of polyandry. This would allow a woman to marry more than one man at the same time. Polygamy has been recognized for many years in South Africa, which means men can marry more than one woman. Members of the public have until the end of June to comment on the proposal of polyandry.
Polyandry has sparked intense debates in Parliament and on social media and is found to be a very controversial topic. Polyandry falls under a range of type of marriages that are not recognized in the country including Hindu, Jewish, Muslim and Rastafarian marriages. The Department of Home Affairs mentioned that with the proposal of legalisation of polyandry is that it sought to create a new marriage act that will allow all citizens in the country to conclude recognized legal marriages. Section 9(1) of the Constitution of the Republic of South Africa provides that everyone is equal before the law and has the right to equal protection and benefit of the law. Section 9(3) of the Constitution provides that the State may not unfairly discriminate directly or indirectly against anyone on one or more of the grounds including race, gender, status, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, or religion.
Although polyandry takes a progressive stance in support of gender equality one needs to be mindful of the impact that legalisation of polyandry would have on our existing laws. For example, the impact on the shared rights and responsibilities of the parents in respect of the minor children, should a woman decide to engage in another marriage while already married with minor children. Will the rights and responsibilities pass on to the new spouse? What would the implications be should the marriage break down between the wife and the new spouse? Another question commonly asked, would a polyandry marriage not create violence within the household sparked by jealousy between the husbands? The implications with regards to the paternity of a child if a woman is married to more than one man and the issue of child maintenance should the marriages break down?
On social media, various scores and polls were conducted to establish society’s opinion on the legalisation of polyandry. Most of the voters welcomed the proposal and said that women should have the freedom to do what they want, whilst other voters believed that the proposal was sexually immoral.
Whilst we support the progressive approach being adopted, the overall question that remains unclear is how will our existing laws be amended to afford rights and protection to the spouses entering into polyandry marriages?
If you are contemplating entering into a polyandry relationship, or should you require any legal advice or assistance, do not hesitate to contact BBP Law Attorneys.