Abstract

South Africa (SA) still legally permits child marriages. A consistent call has been made by the Committee on the Rights of the Child (CRC) as well as the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) to SA to abandon this practice. Recent legislative developments indicate that SA might heed such a call. The draft Marriage Bill of 2023 restricts the marriageable age to anyone 18 years or older. Should this law become operational, it will effectively prevent anyone from entering into marriage as a child. Although this law reform would be a victory against child marriage, it will come with one notable limitation – prospective legal application. In recent discussions between the CRC and the South African delegation on the latest country report, a committee expert asked a pertinent question: ‘What was being done to help children already married?’ The position and vulnerability of the South African child in relation to private law, public law and international law sources emphasise the significance and importance of the prospective prohibition on child marriage in South Africa, but fail to account for children already married. In imagining a legal position where South Africa has already banned child marriage, what must be questioned is whether the prohibition will impact the rights and status of the already-married child and whether a retroactive operation should be included when enacting the change to the legislative framework. Potential retroactivity would have a drastic impact on the complex nature of rights, duties and entitlements of children in existing child marriages. Our research intends to examine whether the potential negative impacts of retroactivity when ending child marriage can and should be justified in the best interest of married children.