Legal Pluralism in South Africa: The Implications of Co-Existing Customary and Civil Marriages

Abstract

In South Africa marriage was a key site of colonial legal pluralism. Family formation and marriage were central to upholding boundaries between colonial and local normative orders. Under the umbrella of a single set of fundamental constitutional rights, post-apartheid law nevertheless retains separate statutes, precedents and legal rules for different cultural and religious marriages. This can lead to legal gaps and uncertainty when people enter into simultaneous or coexisting marriages, especially when the same couple concludes a customary marriage together with a civil marriage. This article examines the current configuration and implications of legal pluralism in South Africa by analsysing the interaction between coexisting customary and civil marriages between the same spouses. It identifies three themes in the relationship between these marriages: a hierarchy which continues to privilege civil law over other legal and normative systems; second, failure on the part of the legislature to clarify confusing aspects of the interaction between these forms of marriage and, finally, gaps which neither applicable legal system addresses satisfactorily. It also illustrates the political failure of the legislature, almost thirty years after the advent of democracy, decisively to address the socio-economic problems created by pluralism and the inadequate regulation of customary marriages.