South Africa: Customary Marriage - Is the Law Working?

Source: Groundup, 01/03/2016

South Africa: Customary Marriage - Is the Law Working?
1 March 2016 - Groundup
Under apartheid, most married women in South Africa were regarded in
law as minors, under the guardianship of their male relatives or their
husbands. New laws since 1994 set out to change that. But are the new
laws working? Prof. Chuma Himonga, the National Research Foundation
Chair in Customary Law and Elena Moore of the University of Cape Town
conducted a study to find out.
Before 1994, the law hardly recognised customary marriages, as opposed
to marriages entered into in accordance with the Marriage Act 25 of 1961.
Black married women were regarded as perpetual minors; they could not
acquire or own property in their own right and in some parts of the
the country customary husbands had absolute ownership of household
property and personal property (including earnings) of their wives.
In the post-apartheid era, the Recognition of Customary Marriage Act
(RCMA) improved women's access to economic resources from a marriage.
The new laws introduced principles of gender equality and
non-discrimination, and the protection of the rights of children in
the family. All children, including female children and children born
outside the marriage now have an equal right to inherit.
So how are these new laws working? We conducted a national study, in
association with the National Movement of Rural Women, to examine how
the new laws operate in practice. We found that structural and
cultural barriers make the new laws very difficult to implement.
One participant, Sisanda (not her real name) summarised some of the
problems:
"Sometimes even though you are married to your husband, in some
families, maybe when your husband dies it's hard to fight for your
rights, because they say if your marriage is not registered, your
in-laws disregard your rights. Yes, there is a difference because
[with] the marriage of the Recognition of the Customary Marriages Act,
you have rights when problems arise, and your in-laws cannot deny you
your rights, and they cannot interfere. You can even go to report at
Home Affairs as they have registered your marriage and you would be
able to resolve the issue... . What raises up suspicions in a
traditional marriage, is that you would be sitting there with your
Xhosa traditional bride attire, considering yourself as married but
you do not have a ring, and your name is not registered at Home
Affairs. Your partner could marry someone else at Home Affairs and now
when you want to claim your rights it's hard to do that because your
marriage was not registered and there is someone else on record. My
advice is to get married and register the marriage."
As Sisanda's use of images and concepts such as 'traditional
marriage', 'Xhosa traditional bridal attire', 'ring', 'in-laws', 'Home
Affairs', and 'rights' shows, there is a complex link between
customary and civil marriages.
A customary marriage and a civil marriage are both types of legal
marriages. Either can be registered at Home Affairs. A civil marriage
is a marriage contracted between two parties under the Marriage Act. A
customary marriage is legally defined as a marriage in accordance with
customary law, that is, the customs and usages traditionally observed
among the indigenous African peoples of South Africa and which form
part of the culture of those peoples. People can register their
marriage according to customary law or civil law but not both.
Our study revealed a great deal of confusion among married couples
about the differences between customary marriages and civil marriages
and about the registration process and the legal regulation of both
marriages.
Despite the introduction of the Recognition of Customary Marriage Act,
civil marriages are thought to provide better legal protection. This
is not the case.
Moreover, registering a marriage with the Department of Home Affairs
was strongly associated with civil marriages. This should not be the
case. Almost all the people in our study thought they had registered
their marriage as a customary marriage, but in fact, this was not the
case as they all married under the Marriage Act. They were unaware of
the marital system they had married under and they were therefore
unaware of the rights and responsibilities of being married according
to a specific legal system. The findings also show that officers
registering marriages did not distinguish between registering a
customary marriage and registering a civil marriage.
The findings make a case for questioning whether officials at the
Department of Home Affairs are prioritising the registration of civil
marriages at the expense of customary marriage registrations.
There is much discussion about the requirements for a valid marriage,
but our findings show that the practices of the courts and the
practices of the people require the payment of lobolo and the
integration of the wife into the husband's family for the conclusion
of a valid marriage. In some cases part or full payment of lobolo is a
prerequisite for concluding a valid marriage, while in others the
agreement to pay is sufficient.
Take the following example from our findings: Frank married Asanda in
1978; Asanda changed her surname, lived with her husband and his
family and participated in family life. Frank passed away in 2002 and
Asanda sought to obtain the spousal benefit from her husband's pension
and continued to live in the marital home. Frank's family said that
she was never married as Frank had died before he finished paying
lobolo. Asanda could not prove she was married to Frank as the couple
had not registered the marriage.
It has been suggested that people dispute the validity of a marriage
as a way of escaping the financial obligations to spouses at the end
of marriage. When this happens, the dispute hinges on the terms under
which lobolo was negotiated. One side will argue that full payment was
required, while the other side will argue that the families regarded
the wife as a spouse. In most of these cases there is no proof that a
valid marriage exists, as the couple did not register their marriage.
Providing evidence of a valid marriage is then very difficult,
especially when elders have passed away.
The transfer of lobolo and the registration of a marriage are
intricately linked in the eyes of the participants. However for the
purposes of the requirements for a valid marriage, the marriage should
come into existence when the lobolo agreement is concluded, not when
it is actually paid, especially because the parties behave as married
after the agreement. This also ensures that the woman acquires a
legally protected status earlier rather than later.
These matters affect the everyday lives of many South Africans and
their access to resources necessary to sustain livelihoods. People in
customary marriages represent some of the most marginalised and
vulnerable people in our society. While almost one in every two men
and women in a civil marriage is employed, only two in every five men
and women in a customary marriage are employed. Only one-quarter of
women in customary marriages are employed, compared to 37.5% of women
in civil marriages.
Among black South Africans there are almost five times as many widows
as widowers and there are almost twice as many separated or divorced
women as men.
The findings of our study highlight the uneven consequences of divorce
and intestate succession for many black South African women as wives,
daughters or sisters. Women in customary marriages are found to be the
most vulnerable. Failure to register a customary marriage has race and
gender consequences which cannot be overlooked.