Codifying religious family laws in South Africa: reframing the debate within the paradigm of substantive gender equality

Abstract

ABSTRACT After 1994, South Africa adopted a constitution that enables the state to enact legislation to recognise religious marriages. The question facing the state is how to afford recognition to the diversity of marriages in South Africa? Should it advocate a uniformisation of marriage laws and require all marriages to comply with the same set of requirements and have the same consequences apply to them? Or should it pursue a more hybrid approach to recognise the diversity of marriages in South Africa? What would be the effects of these positions on minority religious communities and women within those communities? The author explores three approaches for the recognition of religious family laws: assimilation, accommodation, and integration. She argues that none of the three approaches provides sufficient protection for women’s rights. She suggests that the plurality of marriage forms should be recognised and regulated in a way that enables minority communities to practice their religion in a manner that does not undermine women’s rights. Anything else runs the risk of undermining the religious identity of marriages while enabling the privatisation of gender-discriminatory practices within those marriages. To prevent this, a Gender-Nuanced Integration approach is supported for the recognition and regulation of religious marriages.