Research & Innovation 2015-16 - Page 78

Living customary law and social realities
Under apartheid, most married women in South Africa were regarded
in law as minors, under the guardianship of their male relatives or
husbands. New laws since 1994 set out to change that. But are the
new laws working?
Professor Chuma Himonga, the DST/NRF SARChl
Chair in Customary Law, Indigenous Values and Human
Rights, and Dr Elena Moore of the Department of
Sociology, conducted a national study, in collaboration
with the National Movement of Rural Women, to
examine how the new laws operate in practice. They
found that structural and cultural barriers make these
laws very difficult to implement.
Before 1994, the law barely recognised customary
marriages, as opposed to marriages entered into in
accordance with the Marriage Act 25 of 1961. Women
in customary marriages were regarded as perpetual
minors; they could not acquire or own property in
their own right. In some parts of the country, husbands
in a customary marriage had absolute ownership
of household property and the 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,
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. However, many women
are still not benefiting from these new laws.
The findings of Himonga and Moore’s study
highlight the uneven consequences of divorce and
intestate succession for many black South African
women as wives, daughters or sisters. Failure to
register a customary marriage has race and gender
consequences that cannot be overlooked.
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.
Customary vs civil marriage
A customary marriage and a civil marriage are both
types of legal marriage. Either can be registered at
the Department of Home Affairs. Whereas a civil
marriage is 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 that are 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.
Himonga and Moore’s study revealed a great deal
of confusion among married couples about the
differences between customary and civil marriages,
and about the registration process and the legal
regulation of both types of marriage. Despite the
introduction of the Recognition of Customary
Marriage Act, civil marriages are thought to provide
better legal protection. According to Himonga and
Moore, this is not the case.

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