LAWS 1011 ASSIGNMENT DRAFT
The main point this essay seeks to make is that South African law should change the legal age of marriage to 18 years and older. The reason behind this argument being the effects of child marriages on the brides and the country as a whole. This essay is divided into two main sections. In the first section I will give a brief explanation of what the current law says with regards to child marriages, then I will proceed to discuss the constitutional analysis on the issue of child marriage and finally state the effects of marrying before the age of 18.
The law recognises child marriages as it states that a child younger than18 years of age can engage in marriage here in South Africa. However there are certain restrictions that applies. The minimum legal age eligible for marriage is 18 years for boys and 15 years for girls .Another requirement from Section 24 to 26 of the Marriage Act 25 of 1961 also applies. Even with such requirement the issue of child marriages still remains a continental problem as many chooses not to follow these procedures.
Section 28 of the constitution realises or recognises the rights of children and protects them from abuse, violation and maltreatment.It considers a child as a person under the age of 18 years. The bill of child rights also states that every children has the right to parental care, protection from functions that might be exploitive on the child.A child must not perform ant function not suitable for a person of that child’s age which in this section would be marriage. This entails that the Constitution does recognise the children’s rights.
Child marriage is any form of union, formal or informal occurring before any individuals under the age of 18. It is most common in developing countries such as Botswana, Burundi, Central African Republic, Egypt, India Lesotho, Liberia, Malawi, Mozambique, Namibia, Nigeria, Pakistan, Rwanda, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. As set out in Bjorn. H. Nordtveit’s book called child marriage: schools as protection?. In this book chapter the author outlines that its causes are beyond count. Firstly, cultural or traditional reasons whereby the members of that certain community pass this act from one generation to another hence their significant consideration of it. Secondly, poverty, because most countries in developing countries are poor, they seem to conclude that sending off a daughter for marriage is a solution as it will mean one less person to be taken care of, educated and feed. Thirdly, it can also be caused by efforts to form an alliance between participating families.
Another cause can be pressure from relatives and members of the community in small communities. It can also be caused by lack or less awareness concerning issues of health as this practise leads to health risks in participants. In other places girls consider marriage to be their goal due to lack of job opportunities. Not being aware of campaigns or acts that are against child marriage also contributes as a cause. Others tend to participate because it is mostly common in their respective communities in other words because many people are doing it they tend to think it is good or should be done.
The practise of child marriage induces several effects on girls married before the age of 18, such as isolation from their peers, confined freedom of choice, prevention from enjoying their childhood as they get to be house wives and mothers when they are still young. It also affects them as they face more chances of being affected by HIV/AIDS. They also experiences risks during childbirth, and they might suffer domestic abuse. An example if this would be in the case of s v jezile where a man was convicted on human trafficking, rape and two assaults committed against a schoolgirl aged 14. Child brides are emotionally nor physically ready to be mothers and wives.
They are not matured enough to comprehend marriage. Child marriage affects both boys and girls but it is mostly prevalent in girls. This practise also affects girls by denying them their rights to proper education as set out in an article called child abuse research in South Africa by Velani Mtshali. After looking at the consequences of child marriage on girls education, Solomon Ehiemua, in his article of a quantitive analysis of the effects of marriage arrangement on girl—child in Urohi recommended that, the social workers of certain schools and the workers of the community must make it an effort to teach parents to abandon child marriages and focus on investing on the education of their girls.
Another suggestion is outlined in another article by Jace and Anthony C.Diala called journal of comparative law in Africa whereby they say that the campaigns against child marriages aim should be to educate those who play a role in this practise and be aware of the close connection amongst this exercise and bride wealth. This is clear evidence of the continuing consequences of this practice of marrying before the age of 18. For the better prosperity of those countries affected by this practise including South Africa the ones exercising this should make it a point to stop as they are aware of the effects it have in the ones involved . Campaigns against this practise should increase in number and become more effective. Even though other justify themselves by saying that they are practising their own religion and they have a right to do so as they are protected under chapter 2 section 15 of the Constitution, they still need to take into account that one might practise their religion for as long as it doesn’t infringes on other people’s rights or harm them, so this practise should be abandoned totally.
In conclusion, this paper aimed to argue that the law should change the legal age of marriage to 18 years and older than that. This was archived by my three sections which argued that even with the recognition of children’s rights in the constitution , this practise is still occurring and then proceed to discuss child marriage in detail together with its effects which serves as the main reason for South African law to change the age legal age of entering into a marriage union.
Section 28 (1) (b) (d) (e) (f) of the Constitution of the republic of South Africa, 1996.
Section 15 of the Constitution of the republic of South Africa, 1996.
S v jezile 2016 (2) SA 62 (WCC).
Chapter in a book
B H Nordtveit ‘schools as protection?’ in Spinger, chom(ed) child marriages (2016) 107-126.
Section 24 to 26 of the Marriage Act 25 of 1998.
Velani Mtshali ‘child abuse in South Africa’ (2014) SAPSAC 61.
Jace C. Diala and Anthony C.Diala ‘Journal of comparative law in Africa _child marriage, bridewealth and legal pluralism in Africa’ (2017) 4 SALJ at 104.
Solomon Ehiemua ‘Gender and Behaviour – Access to and dropout if girls from school : a quantitive analysis of the effects of marriage arrangement on girl-child education in Urohi’ (2014) 12 ICPS 6372 at 6381.
Girls not brides ‘child marriage’ available at https://www. Girlsnotbrides.org/child-marriage/South Africa/.
Wikipedia ‘Child-Marriage’ available at https:Wikipedia.org/wiki/child-marriage.
Bellbajao ‘what causes early marriage’ available at https://www.bellbajao.org/what-causes-early-marriage/.