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.

Changing patterns of marriage and cohabitation in South Africa

by | Sep 26, 2019 | ACTA, ACTA 2013

Changing patterns of marriage and cohabitation in South Africa

Authors Dorrit Posel, Stephanie Rudwick

ISSN: 1996-2088
Affiliations: Professor and NRF/DST Chair, University of KwaZulu-Natal; Researcher, University of Leipzig
Source: Acta Juridica, 2013, p. 169 – 180

Abstract

In this study, we investigate recent trends in marriage and cohabitation in South Africa. We use national micro-data to describe how marriage rates diverge sharply by race, with African women far less likely than White women to be ever-married and more likely to be never-married and not cohabiting with a partner. Large racial differences in marital status are evident also among women who are mothers, helping to explain why the majority of African children do not live in the same households as their fathers. We discuss these trends and patterns by reviewing particularly recent research, which suggests that there are economic constraints to marriage, and which explores possible links between widespread support for the custom of bridewealth and low marriage and cohabitation rates among African women, even in the context of childbirth.