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The establishment of the Recognition of Customary Marriages Act 120 of 1998, served the purpose of alleviating the controversies regarding unequal positions of women in customary marriages.
However, despite implementation of the RCMA, it is evident that these inequalities have not been alleviated.
What is customary marriage, and why was the RCMA necessary in the first place?
In South Africa a customary marriage is understood as being entered into in accordance with the traditions and customs of indigenous african customary law.
While the civil marriage is seen as a marriage concluded between two parties, and must be monogamous in order to be valid, customary marriages differ as polygamy is permissible.
Customary marriage is not only completed between two individuals, but also extends to the respective families. Unlike civil marriages, customary unions occur gradually and are not concluded by a single event such as a ceremonial signing of an official document.
Thus, a marriage in terms of customary law is a familial matter which does not require the approval of an officiator in order to be regarded as valid.
Prior to the constitutional changes in 1996, legislation for customary marriages were already in place. Woman in customary unions were deemed as minors, having a lower status than their husbands, thus being subject to their partners marital power.
This was the position in terms of section 11, of the Repeal of the Black Administration Act. The BAA placed prohibitions on which property could be owned by African woman resulting in them being unable to acquire credit. They would also have limited contractual capacity and limited access to courts.
Although, the BAA later improved the legal position of women in terms of their capacity to acquire leasehold and ownership, it did not improve their legal status.
Attempts were made to further improve their position in both Zulu codes with women over the age of 21 finally being considered legal majorities.
However, section 27 of the Natal Code, 1985, complicated this position by stating that married women were subject to the control of the husband and so, even though she was a legal adult, she again acquired the status of a minor upon marriage.
This legislative framework had the consequence of encouraging the “patriarchy principle” (the notion that men are more privileged than women) thus affording senior men control. Because of this, it became apparent that there was a dire need for law reform.
In theory, section 6 of the Act is supposed to provide equality among both parties to a customary marriage. This was further improved by section 9 which provides for the application of the Age of Majority Act.
This Act states that upon reaching 21 entering into a civil or customary marriage a woman becomes a major. Unfortunately, because the law and the amendments aren’t very publicised, the benefits of these are only available to those aware of them.
Section 7 of the RCMA provides the traditional patrimonial system for marriages entered into before the Act came into operation. This means that where the marriage was concluded before the Act commenced, the traditional customary law will be applicable.
However, section 7 also affords a certain level of protection where the spouses in customary marriage concluded before the commencement of the Act. They may apply jointly to a court for leave to change the matrimonial property system that applies to their marriage, subject to certain satisfactions of the court.
Even though this possibility exists, it is seldom that spouses use this; spouses are required to apply jointly, and in certain cultural contexts it may be difficult for a wife to persuade the husband to let go of his control and sole discretion in the marriage.
The application process is also expensive, and where there is a lack of information and education, it makes this option inaccessible to those who it was intended to help.
Section 7 becomes problematic when considering that even though section 6 of 40 equal status the proprietary implications are not altered with respect to customary marriages which have been concluded before the commencement of the act.
Which means that although women are given equal status in terms of section 6, section 7 excludes them from exercising their rights as the marriage is regulated by traditional customary law.
Another problem arises in section 4, which places a duty on the spouses to a customary marriage to register their marriage within the specific time period.
However, it also states that upon failure to do so, the validity of the marriage will not be affected, indicating a contradiction which has the potential to render the compulsory aspect of the provision ineffective.
Although seen as only used for purely administrative purposes, the registration process is the deciding factor as to whether the customary marriage is considered valid.
For example, it would not be possible to make claims for benefits or divorce if the marriage is not registered irrespective of the fact that there is a provision in the RCMA which states that no link between registration and validity exists.
The crucial problem with the registration of the marriage is the impact that this provision has on women. The RCMA states that either spouse can apply, although in practice the registering offices need both to be present.
Case studies have shown that this has been difficult to implement, as a woman will be refused a divorce application, for example, if her husband is not present.
Thus should a woman wish to apply for divorce on grounds of domestic abuse, the husband may complicate proceedings simply by not accompanying her to the application.
Due to the subsequent issues that placed uncertainty on the interpretation and application of various provisions, we can clearly see the dire need for an amendment of the Act in order to address these uncertainties and contradictions, especially where women in customary marriages are concerned.
Van Deventer & Van Deventer Incorporated are a law firm in Sandton and able to assist couples in customary marriages to changing their matrimonial property system, assisting with pension benefit claims and in case of divorce in a customary marriage.
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