South Africa Urged to Enact Family-Law Reform as Parliamentary Term Ends

As the parliamentary term comes to a close, South Africa is presented with an opportunity to protect the relationships in which people actually live through family-law reform. Professor of Law at Rhodes University and Coordinator of the South African Family Law Teachers' Colloquium, Helen Kruuse, argues that after decades of proposals, consultation, and litigation, it is time for reform to make it beyond the promise. The South African Law Reform Commission's recently published report on a Single Marriage Statute offers a chance to change the current state of family law.

The report proposes the Protected Relationships Bill, which recognises religious marriages and life partnerships where parties have undertaken reciprocal duties of support. This is a critical concern, with Census 2022 recording over 3.7 million people living together as partners, and Stats SA reporting a sustained decline in marriage registrations. Kruuse emphasises that it is time to protect families as they live, not only as the law has historically preferred them. The question remains whether the executive and Parliament will see reform through.

The history of family-law reform in South Africa is sobering, with the Law Reform Commission submitting its report on Islamic Marriages and Related Matters, including a proposed draft bill, to the minister for Justice and Constitutional Development in July 2003. However, the comprehensive protection those proposals envisaged did not become law, with some stalling before reaching Parliament and others encountering the end of a parliamentary term. The Civil Union Amendment Bill, which removed the opt-out allowing Home Affairs marriage officers to refuse to solemnise same-sex civil unions, lapsed in 2019 but was revived and became law in 2020.

In the early 2020s, the Department of Home Affairs introduced its Marriage Bill, which ostensibly aimed for a unified legal framework. However, the bill left unmarried life partnerships outside its protection and retained distinctions based on sex and sexual orientation in its provisions. The commission's proposed Protected Relationships Bill offers a broader horizon of recognition. Meanwhile, families build lives that cannot wait on Parliament's calendar, and equal protection should not have to wait for another season.

In 2017, a group of students from Rhodes University wrote to the Minister of Home Affairs, highlighting the vulnerability of people whose relationships lacked adequate statutory protection, particularly women in religious marriages and domestic partnerships. Nine years later, their central question still demands an answer: why the law leaves people vulnerable when the problem is already known and proposals for addressing it already exist.

While courts have extended protections and Parliament has enacted important changes, too much progress has depended on someone first bearing the personal and financial burden of litigation. The Constitutional Court's decision in the case of Bwanya addressed statutory inheritance and maintenance protection for surviving permanent life partners who had undertaken reciprocal duties of support. However, legislative action has too often been reactive, responding to a court's finding of constitutional failure rather than a sustained programme to prevent that failure.

The Single Marriage Statute report matters as it proposes one framework for various kinds of families, and it is crucial that the executive and Parliament seize this opportunity to enact family-law reform. Public-interest organisations have done indispensable work in bringing these exclusions before the courts, but access to protection should not depend on finding an organisation able to take a case or financing litigation privately.

Key points

• The South African Law Reform Commission's report proposes the Protected Relationships Bill to recognise religious marriages and life partnerships.
• The bill aims to protect over 3.7 million people living together as partners.
• Family-law reform is crucial to prevent people from being vulnerable due to a lack of statutory protection.