The impact of the common law and legislation on African indigenous laws of marriage in Zimbabwe and South Africa (2024)

Form over function? The practical application of the Recognition of Customary Marriages Act 1998 in South Africa

'We must begin to think of family policy in terms of the functions we want the family to perform and to leave behind our obsession with form' (Martha Fineman 'Masking dependency: the political role of family rheto-ric'(1995) 81 Virginia Law Review 2181 at 2203). The Recognition of Customary Marriages Act 120 of 1998 is a major legislative measure for the development of customary marriages in line with the constitutional principle of equality, specifically for women. The article explores the interactions between this ideal in the Act with empirical observations and the latest judicial decisions concerning its application. It considers various examples of the lack of protection of women in relationships of a customary nature, and it concludes that both the state and courts favour a formal or definitional approach to customary marriage. In considering alternative approaches that could adequately protect vulnerable parties, two conclusions emerge: First, the article recommends a wholesale revision of the South African family law approach from a focus on form to dependency. Second (and as a short-term measure), the article advocates for the putative marriage doctrine to be applied in the customary marriage context to protect many women who are denied access to 'customary marriage' as a form, and as a result, all of the benefits that flow from such marriage.

Unfulfilled Promises? The Implementation of the Recognition of Customary Marriages Act in South Africa

The Recognition of Customary Marriages Act 1998 (the Act) regulates all matters in relation to customary marriages in South Africa. The Act was specifically enacted to recognize customary marriages as valid, but was also passed to address gender inequality by regulating various customary marriage aspects, the most important being registration and proprietary consequences. This article reflects on the findings of a qualitative study on the registration and proprietary consequences of customary marriages conducted in two rural sites in the Eastern Cape (the former Ciskei and Transkei) and one urban site in the Western Cape (Khayelitsha). These findings show two important issues. First, that access to resources upon death of a spouse or divorce is often prem-ised on successful registration of the marriage, which seldom occurs. Secondly, that the continued patriarchal nature of customary marriages stands in the way of realizing gender equality, particularly in relation to the proprietary consequences of a marriage. As a result, we make possible recommendations of how the Act's objectives can be met.

Marriage under African customary law in the face of the Bill of Rights and international human rights standards in Malawi

African Human Rights Law Journal, 2010

The changing philosophy of African marriage: The relevance of the Shona customary marriage practice of Kukumbira

Journal of African Studies and Development, 2010

Traditions of power and the power of tradition: the state and African customary marriage in South Africa

1994

Reflections on the recognition of African customary marriages in South Africa: Seeking insights for the recognition of Muslim marriages

Acta Juridica, 2013

African Customary Marriages in South Africa and the Intricacies of a Mixed Legal System: Judicial (In)Novatio or Confusio?

McGill Law Journal, 2012

CHILD MARRIAGE, BRIDEWEALTH, AND LEGAL PLURALISM IN AFRICA

Journal of Comparative Law in Africa, 2017

As a widespread practice, child marriage has defied legislation in most sub-Saharan African countries. Is there a link between this defiance and distortions of the meaning of bridewealth? In its original sense, bridewealth functioned as the legitimating sign of marriage, a pledge that the bride will be well-treated, and a figurative recognition of her fecundity and worth to her community. Today, economic stratification and other socioeconomic changes have commercialised bridewealth payment. This article draws a causal link between the distortion of bridewealth payment and the persistence of child marriage in Africa. Arguably, this persistence questions the influence of State law on normative behaviour in social fields. The article locates this argument in the disconnection between State law and people's cultural practices, a notable feature of legal pluralism in post-colonial societies. While legislation remains important in campaigns against child marriage, policy makers should be mindful of its limitations in the face of customary law and socioeconomic realities. Accordingly, anti-child marriage campaigns should aim to educate role players in child marriage and, generally, recognise the close link between early marriage, high bridewealth, and normative interaction.

Gender Equality and Customary Marriage: Bargaining in the Shadow of Post-Apartheid Legal Pluralism

2006

African Customary Marriages in South Africa and the Intricacles of a Mixed Legal System: Judicial (In)novatio or Confusio?

Mcgill Law Journal, 2012