Research & Innovation 2015-16 - Page 79



Feature
Moreover, registering a marriage with the Department
of Home Affairs was strongly associated with civil
marriages: almost all the participants in Himonga
and Moore’s study thought they had registered their
marriages as customary marriages; but in fact, they were
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.
agreement. This also ensures that the woman acquires a
legally protected status earlier rather than later.
The findings also show that officers registering
marriages did not distinguish between registering a
customary marriage and registering a civil marriage.
This raises the question of whether officials at the
Department of Home Affairs are prioritising the
registration of civil marriages at the expense of
customary marriage registrations.
New laws fail to ensure equality: women still
excluded from inheritance
The question of lobolo
There is much discussion about the requirements for
a valid customary marriage, but Himonga and Moore’s
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 the findings: Frank
married Asanda (not their real names) 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, while
continuing to live in the marital home. Frank’s family
said that she was never married, as Frank had died
before he had 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 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, the authors argue that 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 since
the parties behave as though they are married after the
These matters affect the everyday lives of many South
Africans, and their access to the resources necessary
to sustain their livelihoods. People in customary
marriages represent some of the most marginalised
and vulnerable people in our society.
As part of the drive to transform customary family
relations in post-apartheid South Africa, in line with
the new constitutional rights and principles outlawing
discrimination, the Constitutional Court decision in Bhe
v Magistrate Khayelitsha abolished the rule of male
primogeniture. This was because it was discriminatory
against women and children born outside marriage,
contrary to constitutional principles. Instead, the court
created new rules of inheritance. For instance, if the
deceased is survived by one spouse, the spouse inherits
the entire estate. Where the deceased is not survived
by a spouse or spouses, but descendants (children), the
descendants – including extra-marital children – inherit
the entire estate.
But despite these new rules, some members of
the deceased’s family who should inherit, still
do not do so. For example, some daughters,
widows and extra-marital children are excluded
from the estate of a deceased family head. There
are several reasons for this, one of which is the
fact that many estates are administered and
distributed informally, within the family. In other
words, they are not administered and distributed
by the Master of the Court’s office. In the study, in
some cases, this was because interested parties
were not aware of the new rules.
In other cases, participants said they did not like
or approve of the new rules, because they did not
include the customary-law idea of family property.
According to customary law, family property belongs
to the deceased’s family. At death, the property is not
inherited, but given to a ‘custodian’ heir who holds it for
the entire family of the deceased (the extended family),
for their common use and support in time of need.
Since the objectives of the new rules are not being
met in practice, there is a need for measures to
improve the implementation of the new rules, to
realise the objective of eradicating discrimination in
inheritance procedure against women and children
born outside marriage.
This feature is based on a series of articles published
in www.groundup.org.za. More insights from this
study can be found in the authors’ book, Reform of
Customary Marriage, Divorce and Succession in South
Africa: living customary law and social realities.
Image by Salym Fayad, Flickr.
Gender 74

www.groundup.org.zaReform of Customary Marriage, Divorce and Succession in South Africa: living customary law and social realitiesReform of Customary Marriage, Divorce and Succession in South Africa: living customary law and social realitiesReform of Customary Marriage, Divorce and Succession in South Africa: living customary law and social realitiesFlickr





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