Draft marriage bill will criminalise underage unions

Parents will no longer be able to consent to their minor children getting married to marry should the Draft Marriage Bill be passed as it will scrap underage marriages.

The law presently allows for minors to enter into customary and civil marriages with consent from their parent or guardian or from the minister of home affairs should the bride be aged 15 and under.

But the Draft Marriage Bill will put an end to that as it prohibits marriages for minors.

Section 7 of the bill states that “any person who wishes to enter into a marriage must be 18 years or older”.

It further states that for monogamous and polygamous marriages to be valid, they have to be between two people aged above 18 who both give free consent to enter into the marriage and have the legal capacity to do so.

The current Marriage Act as well as the Recognition of Customary Marriages Act allow for parents to give consent for their minor children to enter into civil or customary marriages.

But should the bill be approved, it would be a criminal offence for anyone under 18 to get married or for any guardian or parent to give consent for a minor to enter into marriage.

In 2021, 207 minors were given consent to enter into marriages, the majority of which were customary.

According to Stats SA’s Marriages and Divorces 2021 statistics, released earlier this year, 37 minors entered into civil marriages. Five of them were boys and 32 were girls. Thirty of these brides were marrying for the first time.

A larger 170 minors — 156 girls and 14 boys -entered into customary marriages in 2021, .

There are several reasons why parents would consent to marriages, for example to alleviate poverty or for religious purposes, said cultural expert at University of KwaZulu-Natal Dr Gugu Mazibuko.

“Poverty is one of the major causes for younger girls getting married and there is quite a huge number of unemployed young people. If you find someone who is going to take care of you financially, is well-off and is offering you a hand in marriage, then it becomes very common for young girls to get married at that age,” she said.

The number of young boys entering customary marriages is possibly lower as they don’t have money at that age to get married. Girls, on the other hand, enter customary marriages with men who are much older, Mazibuko said.

“These marriages have to be consented to by the parents and they also have their own gains. Not to generalise, but in some instances some families are comfortable with their girls entering into a customary marriage as they also gain something.”

The University of Pretoria’s Centre for Child Law (CCL) welcomes the scrapping of underage marriages and commends the bill for making such marriages a criminal act.

Spokesperson Stanley Malematja said if the bill is passed into law and implemented effectively, it would significantly reduce the number of girls entering customary marriages.

Research has shown that early, forced and child marriages have negative consequences for children such as abuse, violence, injury, neglect or negligent treatment, maltreatment and exploitation, Malematja said.

“It is, therefore, important to put in a marriage law clear provisions which explicitly prohibit early, forced and child marriages.”

“The CCL notes that in the preamble, the unwanted nature of early, forced and child marriages does not necessarily come to light. Though we noted that the bill is not intended to establish a child marriage statute, it is nevertheless intended to highlight the unwelcome importance of early, forced and child betrothals and marriages, irrespective of cultural, traditional or religious beliefs,” he said.

The CCL says the bill should also protect children who are already married.

“The bill must make it explicit that children already in marriage should be protected against all form of violence, injury, or abuse ... and all forms of discrimination arising from the early, forced and child marriages,” Malematja said.

The Draft Marriages Bill is open for public opinion until August 31.

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