Dynamic Society
South Africa is a dynamic modern democracy, with an emphasis on human rights. It is unique in Africa as the only country to perform and recognise same-sex partnerships and marriage.[1] The majority of Catholics are thus subject to four codes relating to marriage. This can complicate their relationship with the Church:
- The 1983 Code of Canon Law relating to the sacrament of marriage (CIC 1055-1165.)[2]
- The Marriage Act of 1961[3] refused permission to people of different races to marry.
- The Recognition of Customary Marriages Act of 1998[4] provides for the recognition of marriages conducted under manifold indigenous African customs and usages, commonly known as ‘customary law.’
- The Civil Union Act of 2006[5] permitted as an inalienable right the marriage of people of the same sex.
The 1961 Act permitted ordained clergy of various recognised religions to be marriage officers of their respective congregants. These ministers had to do an examination with the Department of Home Affairs in order to be designated as official marriage officers. The 2006 Act recognised marriage officers established under the 1961 legislation, and gave them the possibility to “opt out” of officiating at same-sex marriages, civil unions or civil partnerships. Section 6 of the Civil Union Act provided that a marriage officer may, in writing, inform the Minister of Home Affairs that she or he objected to solemnizing a civil union between persons of the same sex on the grounds of her or his religion, conscience or belief.
In 1991 the Population Registration Act Repeal Act[6] repealed the 1950 legislation requiring all people to be classified as black, white, ‘coloured’ or Indian. The repeal act amended or repealed laws that distinguished between people on the basis of their race or population group, thereby ending (legal) discrimination on the basis of ethnicity.
In 2020 the president signed into law the Civil Union Amendment Act,[7] repealing Section 6 of the 2006 Act, thereby preventing marriage officers (apart from those who are marriage officers designated by their respective religion) from refusing to conduct same-sex marriages. Thus, a couple of the same-sex will theoretically always find an officer at the appropriate government department who will witness and register their marriage vows to each other.
Couples living together as permanent domestic partners, who have not formalised their union through marriage, may soon find their relationship also covered by the civil legislation, and protections may be granted to both parties. New legislation under the Judicial Matters Amendment Bill of 2023,[8] which has been passed by Parliament and is now in the Council of Provinces, would grant inheritance rights to the surviving member of a common law relationship or “permanent life partnership in which partners have undertaken reciprocal duties of support.”
Thus a considerable change has taken place in civil law in South Africa, from marriage being permitted only between men and women of the same race, to marriage being permitted between people (both above the age of 18) of any race and gender configuration, either in a registry office or religious ceremony, or in a customary celebration.
Static Church
The Catholic Church, however, does not move with the times, and remains attached to what are deemed to be eternal verities. Canon Law permits marriage between a man (aged 16 or above) and a woman (aged 14 or above.) Various dispensations from impediments or from the strict application of the law exist for Catholics to marry outside of the church buildings, or to marry a person of another denomination or religion, etc. Based on centuries of experience, ways have been devised to rectify (‘sanate’), or as a last resort, to annul marriages which are perceived to have been contracted illicitly or invalidly.
Canon legal considerations focus on four requirements for validity of a marriage: freedom of the parties; free exchange of consent; intending what the church intends by marriage; and canonical form. These have their equivalents which are desirable in the secular ideas of marriage: non coercion; pronouncing the vows; a social recognition, and the presence of an official and witnesses.
In an age of options and socially accepted alternatives, many faithful, religious Catholics find it inconceivable that one institution – their Church – should claim a monopoly on the narratives and definitions regarding this fundamental life vocation. Given such a smorgasbord of dispensations, configurations, and permutations, it is not surprising that, even at the risk of being accused of “grave sin,” they are marrying under customary law, civil law, or the provisions of the Civil Union Act. For many reasons, not excluding economic considerations, they do not opt for a traditional church wedding. They do not perceive their choices, even if they are not in accordance with Catholic teaching, as “living in sin,” or a breach of their relationship with God or with the People of God. Rather they are finding happiness in stable, loving, committed, lifelong relationships, and (except for the case of polygamous marriages permitted under customary law) “forsaking all others.” This is not necessarily indicative of a “loss of the sense of sin,” but possibly rather a shift of the sense of sin from matters to do with sexuality to other matters (perhaps regarding social and environmental justice).
Fewer Marriages
Is this extension of marriage possibilities in fact eroding the institution of marriage as a whole? It is difficult to tell whether there is a causal connection between the multiplicity of socially acceptable forms of marriage per se, and the declining rate of marriage in South Africa over the past decade.[9] Intuition would suggest that broadening the parameters of what is considered to be marriage would include greater numbers of people. A more exclusive, traditional understanding of marriage would reduce the number of people who are regarded as married.
Family and divorce lawyer Bertus Preller hypothesises[10] six “reasons why more couples are choosing life partnerships over marriage:”
Changing social norms have contributed to a decline in the perceived necessity of marriage.
People value personal autonomy and are hesitant to enter into legally binding commitments like marriage.
People are reluctant to undertake the financial burden of a formal wedding.
Career and educational advancement cause people to delay life’s milestones.
As women advance in education and professions, they depend less on marriage for security and support.
Couples who do not prioritise symbolic or religious aspects may find life partnerships more attractive than marriage.
Broadening Pastoral Discourse
As long as the Church confines its marital discourse to the traditional exclusive language of sacraments, sin and canon law, it will not address the daily and existential needs of people in permanent life relationships. They need pastoral accompaniment, discernment, and not censure from their faith community.
Already at the Second Vatican Council, participants recognised the changing fortune of marriage in the contemporary world. Yet in Gaudium et Spes (47-52) they chose to reaffirm, with due pastoral solicitude, an idealised picture of marriage and the family. After reflection on this contemporary need, in 2016 Pope Francis published a post-synodal exhortation on love in the family, Amoris Laetitia,[11] and in 2023 the DDF published a declaration on the pastoral meaning of blessings, Fiducia Supplicans.[12] These significant initiatives potentially broaden the church’s recognition of and pastoral ministry to families in many different configurations. Yet these pastoral documents have met sustained resistance from people who prefer the security of rigid definitions and moral certainties.
Hopefully the renewed pastoral care for families is not too little too late, and the church will always be relevant in the lives of people in less “regular” situations. Most episcopal responses to the declaration Fiducia Supplicans were prefaced along the lines of: we remain faithful to the perennial teaching of the Church of marriage as an “exclusive, stable and indissoluble union between a man and a woman, naturally open to the generation of children.”[13] Is it impossible for the Church to learn from the people of our times, and welcome more generously the contemporary experiences of polygamy, same-sex love, women’s growing autonomy, commitment phobia, secularisation and plurality?
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[1] Since 2023, Namibia, recognises same-sex marriages contracted in another country.
[2] Code of Canon Law (London: Collins, 1983).
[3] South African Government. Marriage Act 25 of 1961. https://www.gov.za/documents/marriage-act-21-apr-1961-0000
[4] South African Government. Recognition of Customary Marriages Act 120 of 1998. https://www.gov.za/documents/recognition-customary-marriages-act
[5] South African Government. Civil Union Act 17 of 2006. https://www.gov.za/documents/acts/civil-union-act-17-2006-17-nov-2006
[6] South African Government. Population Registration Repeal Act 114 of 1991. https://www.gov.za/documents/population-registration-act-repeal-act-11-may-2015-0922
[7] South African Government. Civil Union Amendment Act 8 of 2020 (English/isiZulu) https://www.gov.za/documents/acts/civil-union-amendment-act-8-2020-english-isizulu-22-oct-2020
[8] Parliament of South Africa. Judicial Matters Amendment Bill (B7-2023). https://www.parliament.gov.za/bill/2309189
[9] BusinessTech. Big Shift in Marriages and Divorces in South Africa. (27 Feb. 2023). https://businesstech.co.za/news/government/668545/big-shift-in-marriages-and-divorces-in-south-africa/
[10] Bertus Preller. Marriage in Decline: The Latest Statistics Reveal a Downward Trend in South Africa. Family Law South Africa (9 April 2023). https://familylaws.co.za/marriage-declining-rate/
[11] Francis. Post-synodal Apostolic Exhortation on Love in the Family, Amoris Laetitia (Vatican: 2016). https://www.vatican.va/content/dam/francesco/pdf/apost_exhortations/documents/papa-francesco_esortazione-ap_20160319_amoris-laetitia_en.pdf
[12] Dicastery for the Doctrine of the Faith. Declaration Fiducia Supplicans on the Pastoral Meaning of Blessings (Vatican: 2023) https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_ddf_doc_20231218_fiducia-supplicans_en.html
[13] This formula is quoted from Fiducia Supplicans, 4.