Here’s an interesting article by a respected netfriend of mine who lives in South Africa. How does all this apply to your country? ~~~

Marriage in South Africa

Marriage and other social and domestic partnerships

Dr Stephen Hayes

1 Introduction

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The purpose of this paper is to suggest that the Marriage Act be repealed altogether, and that marriage should cease to be the concern of the State, but should for the most part be dealt with by civil society.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If the Marriage Act were to be repealed, there should be new legislation provide for marriage and other social and domestic partnerships to have similar legal consequences to those that marriage has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)

the following:

* Monogamous marriage

* Polygamous marriage

* Unions of two people of the same sex

* Unions of two or more people of the same or different sexes

* 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 partnerships.

2006-09-16

http://methodius.blogspot.com/2006/09/state-should-get-out-of-marriage.html