Abstract
The essence vindicated? Courts and customary marriages in South Africa
Highlights
This article describes different approaches in which courts have determined the validity of customary marriages under the Recognition of Customary Marriages Act in order to address the historical injustices of vulnerable parties in a customary marriage
Since the coming into effect of the Recognition of Customary Marriages Act (RCMA),[1] case law show that customary rules and practices that regulate the validity of a customary marriage have undergone significant change.[2]
When determining the applicable customary law in the context of customary marriage requirements, it is important to restate that these laws are diverse due to the different ethnic groups that exist in South Africa.[29]
Summary
This article describes different approaches in which courts have determined the validity of customary marriages under the Recognition of Customary Marriages Act in order to address the historical injustices of vulnerable parties in a customary marriage. These approaches are drawn from selected cases decided after the Act came into effect and consist of two scenarios, namely, ‘judicial notice’ and ‘proof’ of customary law. If the approach has emphasised the recognition of the essence of customary law, courts have validated these marriages and protected vulnerable parties.
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