Rethinking marriage and its privileges

by | Sep 26, 2019 | ACTA, ACTA 2013

Rethinking marriage and its privileges

Authors Denise Meyerson

ISSN: 1996-2088
Affiliations: Professor of Law, Macquarie Law School, Macquarie University
Source: Acta Juridica, 2013, p. 385 – 408

Abstract

The law has traditionally privileged civil marriage over functionally indistinguishable informal unions. I argue in this article that the traditional approach is incompatible with the liberal ideal of state neutrality. I also explain why some possible solutions to this problem are not satisfactory. The problem is not cured by ensuring that the rules governing access to marriage are not discriminatory or by recognising forms of marriage other than civil marriage, such as religious marriage and customary marriage. Nor is it a solution to retain the official institution of marriage while extending its financial and legal benefits to the unmarried, since this leaves the symbolic superiority of marriage intact. Finally, it is not satisfactory to leave family life to private ordering because while this would satisfy the demands of state neutrality by treating all domestic relationships equally, it would fail to recognise that principles of justice apply within domestic relationships. I conclude that there is only one way to overcome the defects of the traditional approach which is consistent with both state neutrality and the recognition that the vulnerable members of families are owed protection as a matter of justice. This is to abolish marriage as an official institution while extending the benefits and protection traditionally reserved for marriage to all comparable caregiving domestic relationships.

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

by | Sep 26, 2019 | ACTA, ACTA 2013

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

Authors Waheeda Amien

ISSN: 1996-2088
Affiliations: Senior Lecturer, Faculty of Law, University of Cape Town
Source: Acta Juridica, 2013, p. 357 – 384

Abstract

In 1998, South Africa enacted the Recognition of Customary Marriages Act 120 of 1998 (RCMA), which for the first time in the history of the country afforded legal recognition to African customary marriages. The enactment of this legislation was effected in accordance with section 15(3)(a) of the Constitution of South Africa 1996. Through the same constitutional provision, the South African government proposes to enact legislation to afford legal recognition to Muslim marriages. The draft legislation recommending the recognition and regulation of Muslim marriages is known as the Muslim Marriages Bill (MMB). The MMB has generated a fair amount of controversy within the South African Muslim community and broader civil society. In this paper, I undertake a comparative analysis of the RCMA and MMB with the specific aim of deriving lessons from the recognition of African customary marriages for the recognition of Muslim marriages. A reflection on the manner in which African customary marriages have been recognised and regulated reveals that the approach considered for the recognition and regulation of Muslim marriages must be impact-focused and context-driven. In particular, to advance constitutional rights and norms, I show that attention must be paid to the position of marginalised and vulnerable groups within the Muslim community, including women and children. At the same time, I demonstrate that in drafting legislation to recognise Muslim marriages, many competing interests are at play. As such, it may be necessary to entertain reasonable compromises to ensure that the legislation is enacted and that it contains the potential to safeguard the rights of the more marginalised members of the Muslim community.

‘Today it would be called rape’: a historical and contextual examination of forced marriage and violence in the Eastern Cape

by | Sep 26, 2019 | ACTA, ACTA 2013

‘Today it would be called rape’: a historical and contextual examination of forced marriage and violence in the Eastern Cape

Authors Nyasha Karimakwenda

ISSN: 1996-2088
Affiliations: None
Source: Acta Juridica, 2013, p. 339 – 356

Abstract

The practice of ukuthwala has received considerable attention from the media, government, and civil society over the past few years. Reports assert that there has been a marked resurgence in the practice, in a distorted and destructive form, where older men target and violate vulnerable young girls, forcing them into marriage. Many of the coercive aspects of ukuthwala have been denounced as newly deviant and antithetical to the way marriage traditions were practiced in the past. This paper argues that these depictions of ukuthwala and traditional marriage are inaccurate. An examination of historical sources concerning Xhosa-speaking peoples in the Eastern Cape reveals the deeply rooted and longstanding linkages between marriage and violence. Although varying in prevalence over time, violence has been sanctioned by local understandings of consent and interpersonal relationships. The specific concepts that permit violence against girls and women have not only existed in conjunction with marriage, but also operate in various forms of abuse against females, such as group rape and child sexual abuse. Understanding the different manifestations of local conceptions of violence assists in explaining the embeddedness of gender-based violence today, as well as the immense challenges in eradicating it.

Mayelane v Ngwenyama and Minister for Home Affairs: a reflection on wider implications

by | Sep 26, 2019 | ACTA, ACTA 2013

Mayelane v Ngwenyama and Minister for Home Affairs: a reflection on wider implications

Authors Chuma Himonga, Anne Pope

ISSN: 1996-2088
Affiliations: Professor of Law in the Department of Private Law, University of Cape Town. She holds the South African National Research Foundation Chair in Customary Law; Associate Professor in the Department of Private Law, University of Cape Town
Source: Acta Juridica, 2013, p. 318 – 338

Abstract

The recent Constitutional Court decision in Mayelane v Ngwenyama and Minister for Home Affairs raises several interesting issues concerning customary marriage and related aspects. In particular, the commentary reflects on the scope and effect of the decision, methods of ascertainment of customary law and the measures needed to balance and protect the competing rights of a first wife and subsequent polygynous wives in a customary marriage. Further issues include consideration of use of the mero motu powers of the Court and of the realities of the implementation of judicial decisions and other efforts directed at legal change. The authors conclude that the decision makes a valuable contribution to this line of jurisprudence insofar as ascertainment of living customary law is concerned but also that it misses important opportunities to clarify and guide issues relating to women who marry under customary law.

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

by | Sep 26, 2019 | ACTA, ACTA 2013

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

Authors Lea Mwambene, Helen Kruuse

ISSN: 1996-2088
Affiliations: Senior Lecturer, University of the Western Cape; Research Associate, Community Law Centre, University of the Western Cape
Source: Acta Juridica, 2013, p. 292 – 317

Abstract

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 rhetoric'(1995) 81 Virginia Law Review 2181 at 2203).

Twelve years later: how the Recognition of Customary Marriages Act of 1998 is failing women in South Africa

by | Sep 26, 2019 | ACTA, ACTA 2013

Twelve years later: how the Recognition of Customary Marriages Act of 1998 is failing women in South Africa

Authors Roxanne Juliane Kovacs, Sibongile Ndashe, Jennifer Williams

ISSN: 1996-2088
Affiliations: Reading Philosophy, Politics and Economics at the University of York. She worked as an intern at the Women’s Legal Centre in 2012; Attorney at the International Centre for the Protection of Human Rights (INTERIGHTS). She was an attorney at the Women’s Legal Centre from 2002 until 2007; Director of the Women’s Legal Centre in Cape Town. She is an admitted attorney and conveyancer
Source: Acta Juridica, 2013, p. 273 – 291

Abstract

In this contribution we discuss how the Recognition of Customary Marriages Act (RCMA) is failing women. We start by discussing the importance of the recognition of customary marriages and the problems associated with their recognition. We then investigate the challenges presented by s 4 of the RCMA, which stipulates that all customary marriages must be registered within a certain time period. We also examine the role of lobolo and the requirements for entering a customary marriage, which are unclear under the RCMA. Finally, we show that the legislation does not adequately provide for women in polygynous marriages. This contribution is a determined call to amend the RCMA and to re-open the debate on how best to regulate customary marriages.