Forced Marriage Overseas: South Africa

Overview

Individuals from the United States may face hurdles if trying to avoid and/or escape forced marriages in South Africa. Although laws exist to protect women and girls, discrimination and violence against women, particularly domestic violence, remains a significant problem. While South Africa’s legislation on human rights is progressive, there are critical obstacles to its effective implementation and enforcement, particularly in rural areas.

For further information and guidance for individuals from the U.S. that are facing or fleeing a forced marriage in South Africa, please contact the Forced Marriage Initiative.

Marriage in South Africa

South Africa legally recognizes two types of marriages: civil marriages carried out under the Marriage Act of 1961 (Marriage Act),¹ and customary marriages which are governed by the Recognition of Customary Marriages Act of 1998 (Recognition Act).²

The Marriage Act states that no boy under the age of 18 years and no girl under the age of 15 years is capable of contracting a valid civil marriage, however, exceptions to the minimum age requirements include the following:

Girls: 12 to 14 – with the consent of the girl, her parents AND the Minister of Home Affairs.
Boys: 14 to 17 – with the consent of the boy, his parents AND the Minister of Home Affairs.
Note: The minimum age for a valid marriage is set out in terms of common law. Common law dictates that a child cannot get married below the age of puberty, i.e., below 12 years for girls and below 14 years for boys.

Customary marriage is a marriage concluded in accordance with the traditional customs observed among the indigenous African people of South Africa.³ A key difference between civil and customary marriages is that polygamy is allowed in the case of customary marriages.⁴

The Recognition Act states that a customary marriage is valid when the prospective spouses are above 18 years old and both consent to be married to each other, though the following exceptions to the customary marriage minimum age requirements are possible:

Girls: 12 to 17 – with the consent of the girl, her parents AND the Minister of Home Affairs or an officer in the public service authorized by the minister to give permission for the marriage.
Boys: 14 to 17 – with the consent of the boy, his parents AND the Minister of Home Affairs or an officer in the public service authorized by the minister to give permission for the marriage.
The Children’s Act now prohibits the arrangement of marriages or engagements for children below the minimum age for a valid marriage (i.e., 12 years for girls and 14 years for boys). Furthermore, the Act requires the child’s consent to the arrangement of his/her marriage or engagement.

Ukuthwala is a traditional practice that involves abducting a female in order to force marriage negotiations with her family and was previously considered a preliminary step in the customary marriage process. Ukuthwala is practiced primarily in rural parts of South Africa, in particular the Eastern Cape and Kwala Zulu-Natal provinces. In its current form, ukuthwala more closely resembles forced marriage and can also lead to child marriages.

Annulment and Divorce are available options for both men and women to end a marriage in South Africa.

Lack of consent, fraud, and force are all grounds for an annulment in South Africa. The law also allows for divorce in the event of an irretrievable breakdown of the marriage and this provides another avenue to end a marriage for an individual who does not have the means to prove lack of consent, fraud or force.⁵

Potential Risks and Protections in Country

Forced marriages do occur in South Africa and the enforcement of laws meant to prevent forced marriages is limited in several ways, including: poor policing and monitoring of violations of such laws, significant under-reporting by victims, limited access by victims to courts, a lack of response by the court system, shortages of employees and funding in the health and social services sectors, and in the case of a customary marriage, community disapproval of the use of public means of solving marital problems.

While there is no forced marriage specific criminal legislation both the Marriage Act and the Recognition Act require the consent of both parties for a marriage to be valid and under Section 1 of the Children’s Act, exploitation in relation to a child is defined to include all forms of slavery or practices similar to slavery, including forced marriage.

Domestic violence is often significantly under-reported^6,7 and laws meant to protect against domestic violence are under-enforced, both by the police and by the courts. The Domestic Violence Act of 1998 sought to increase enforcement of such laws and requires police to help domestic violence complainants to find shelter or medical treatment, inform them of their rights and available criminal and civil remedies, serve notice on the abuser to appear in court, serve protection orders and other services.⁸ Many police stations have failed to meet these measures, however, and of 145 stations that were reviewed by the government, only two were fully compliant with the Domestic Violence Act. Limited access to courts remains a major issue for many victims.⁹

Customary law can also interfere with the enforcement of domestic violence laws and women living in rural areas that adhere to customary law may encounter further obstacles to safety and justice.¹⁰

In addition, the health and social service professions are grossly underfunded and critically understaffed, the employees in those sectors often lack expertise and are not well monitored and there remains poor coordination across government and between sectors when it comes to implementation and enforcement.¹¹

Special Challenges in Returning to the United States

There are no known legal restrictions on women leaving the country, married or unmarried. An unaccompanied minor seeking to leave South Africa must produce proof of consent from one or both parents or a legal guardian in the form of a letter or affidavit prior to the date of travel.¹² Individuals should always check the exit requirements for South Africa the most up to date information.

Assistance for Individuals from the United States

Get Help

The Tahirih Justice Center Forced Marriage Initiative
We are available to help individuals from the United States who are facing or fleeing forced marriage in South Africa, including providing phone, text, and email support, connecting with the U.S. government and local resources, and coordinating shelter and services back in the United States.

The U.S. State Department
The State Department is available to assist U.S. citizens that are victims of forced marriage with replacement of travel documents and return travel to the United States. For updated information and travel alerts, please visit the department’s webpage on international travel in South Africa.

U.S. Embassy in Pretoria
Contact the Embassy in the case of an emergency.
Tel: +(27)(12) 431-4000 / 012-431-4000
Email: acsjohannesburg@state.gov

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REFERENCES
¹ Marriage Act 25 of 1961 (Marriage Act), available at http://www.divorcelaws.co.za/uploads/1/2/1/6/12166127/marriage_act_25_of_1961.pdf
² Recognition of Customary Marriages Act 120 of 1998 (Recognition Act), available at http://www.justice.gov.za/legislation/acts/1998-120.pdf
³ Recognition Act, Section 1
⁴ “Customary Law v Common Law Marriages: A Hybrid Approach in South Africa”, Marissa Herbst and Willemien du Plessis, at: http://www.ejcl.org/121/art121-28.pdf
⁵ The Divorce Process in South Africa, available at http://www.divorcelaws.co.za/the-divorce-process-in-south-africa.html
⁶ “Domestic Violence in South Africa,” Lisa Vetten (November 2014), available at https://www.issafrica.org/publications/policy-brief/domestic-violence-in-south-africa
⁷ “Factsheet: South Africa’s 2014/15 Assault and Sexual Crime Statistics”, available at https://africacheck.org/factsheets/factsheet-south-africas-201415-assault-and-sexual-crime-statistics/
⁸ “Domestic Violence in South Africa” at pages 4-5 (cited above)
⁹ “SAPS Compliance to the Domestic Violence Act” (03 November 2014), available at http://pmg-assets.s3-website-eu-west-1.amazonaws.com/141105research_unit_dva_compliance.pdf
¹⁰ “Customary Law and Domestic Violence in Rural South African Communities” by Ericka Curran and Elsje Bonthuys (2004), available at http://www.csvr.org.za/docs/gender/customarylawand.pdf
¹¹ Save The Children, Protecting Children in South Africa from Violence, Abuse, Neglect and Exploitation – Baseline 2010: National Child Protection System in South Africa, available at http://resourcecentre.savethechildren.se/sites/default/files/documents/4445.pdf (2010)
¹² U.S. Department of State, http://travel.state.gov/content/passports/en/country/south-africa.html