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.

When non-registration becomes non-recognition: examining the law and practice of customary marriage registration in South Africa

by | Sep 26, 2019 | ACTA, ACTA 2013

When non-registration becomes non-recognition: examining the law and practice of customary marriage registration in South Africa

Authors Monica de Souza

ISSN: 1996-2088
Affiliations: Researcher at the Centre for Law and Society, Faculty of Law, University of Cape Town
Source: Acta Juridica, 2013, p. 239 – 272

Abstract

The Recognition of Customary Marriages Act 120 of 1998 provides legal recognition to traditional African marriages and sets up a process whereby these marriages are formally registered with the Department of Home Affairs. With reference to testimonies from Msinga, a rural district of KwaZulu-Natal, this article examines how the current registration process is out of touch with reality and difficult to comply with, especially in respect of polygamous marriages. Customary marriages therefore often remain unregistered. While customary marriages are legally valid despite not being registered, in practice registration has become the threshold for recognising the existence of these marriages when marital status is in question. As a result, non-registration is effectively non-recognition and deprives women and children of the significant benefits and protections associated with marriage. More broadly, the article will argue that the registration process actually undermines several of the Act’s objectives — leaving women living in rural, customary law contexts in a vulnerable position.

Renegotiating intimate relationships with men: how HIV shapes attitudes and experiences of marriage for South African women living with HIV: ‘Now in my life, everything I do, looking at my health’

by | Sep 26, 2019 | ACTA, ACTA 2013

Renegotiating intimate relationships with men: how HIV shapes attitudes and experiences of marriage for South African women living with HIV: ‘Now in my life, everything I do, looking at my health’

Authors Diane Cooper, Elena Moore, Joanne E Mantell

ISSN: 1996-2088
Affiliations: Associate Professor, Women’s Health Research Unit, School of Public Health and Family Medicine; Lecturer, Department of Sociology, University of Cape Town; Senior Research Fellow, Centre of Social Science Research; Professor of Clinical Psychology in Psychiatry, HIV Center for Clinical and Behavioral Studies, New York State Psychiatric Institute and Columbia University, New York
Source: Acta Juridica, 2013, p. 218 – 238

Abstract

This paper explores marriage attitudes and practices among Xhosa-speaking women living with HIV (WLHIV) in Cape Town, South Africa. It reports on a study that assessed the fertility intentions of a cohort of people living with HIV, aimed at informing an HIV care intervention. It draws on qualitative data generated from 30 successive interviews with WHLIV in wave 1, 23 interviews in wave 2 and 20 follow-up interviews in wave 3. Gender inequality, marriage and HIV are strongly intertwined. Broader layers of South Africa’s history, politics and socio-economic and cultural contexts have consequences for the fluidity in intimate relations, marriage and motherhood for WLHIV. Key and conflicting themes emerge that impact on marriage and motherhood. Firstly, marriage is the ‘last on a list of priorities’ for WLHIV, who wish to further their children’s education, to work, to earn money, and to achieve this rapidly because of their HIV-positive status. We demonstrate that the pressure women face in marriage to bear children creates a different attitude to and experience of marriage for WLHIV. Some WLHIV wish to avoid marriage due to its accompanying pressure to have children. Other WLHIV experience difficulties securing intimacy. WLHIV may find it easier to seek partners who are also living with HIV.Apartner living with HIV is perceived as sharing similar fertility goals. In this study, HIV accentuates existing issues and highlights new ones for WLHIV negotiating intimacy. The findings contribute to the existing knowledge base regarding the fluidity of marriage and fertility intentions within the dynamic context of living with HIV. These are likely to have broader relevance in currently rapidly urbanising and economically developing countries with high HIV prevalence in southern Africa.

How social security becomes social insecurity: unsettled households, crisis talk and the value of grants in a KwaZulu-Natal village

by | Sep 26, 2019 | ACTA, ACTA 2013

How social security becomes social insecurity: unsettled households, crisis talk and the value of grants in a KwaZulu-Natal village

Authors Bernard Dubbeld

ISSN: 1996-2088
Affiliations: Lecturer in the Department of Sociology and Social Anthropology, Stellenbosch University
Source: Acta Juridica, 2013, p. 197 – 217

Abstract

There is no respect in these times, because young people say they have rights, so they do whatever they like. The boys of today have no honour, they get girls pregnant and leave them. (Mandla) I think it’s criminal behaviour, you should not take somebody’s child and cohabit with her when you have not paid lobola. Our children now go out with a girl and take her to their homes, and she agrees. In the end she has children and there are fights, and he doesn’t want to pay anymore, because we women are paid with a grant. (Hlengiwe)

Declining rates of marriage in South Africa: what do the numbers and analysts say?

by | Sep 26, 2019 | ACTA, ACTA 2013

Declining rates of marriage in South Africa: what do the numbers and analysts say?

Authors Christine Mhongo, Debbie Budlender

ISSN: 1996-2088
Affiliations: At the time of writing this article, Ms Mhongo was a researcher at the Centre for Law and Society (formerly Law, Race and Gender Research Unit) in the Faculty of Law at the University of Cape; None
Source: Acta Juridica, 2013, p. 181 – 196

Abstract

This article interrogates the extent to which the population censuses conducted in South Africa between 1921 and 2001 provide evidence of a decline in marriage rates among African males and females. It thus differs from other articles in this collection which discusses findings from household sample surveys. In addition to presenting the trends, the article summarises the different arguments offered in the literature relating to this period for the decline in rates of marriage. The article suggests that most of the arguments have merit, but the strength of the different factors would have differed over time and among different groups of women and men. Further, the article offers a possible methodological and linguistic reason for the perhaps ‘incorrect’ finding that the decline in marriage rates has stalled since 1995, but also argues that those who claim that it is post-apartheid factors that are driving the decline in marriage need to confront the fact that this is not a new trend.