The recognition of same-sex customary marriages under South African customary law

Abstract

Same-sex couples in South Africa may conclude marriages and enjoy equal rights as their opposite-sex counterparts. A glaring lacuna in South African law is whether same-sex couples may marry in accordance with customary law with legal force and effect. This article uses desktop research to critically examine whether customary law accommodates same-sex customary marriages and if not, whether customary law should be developed to do so. Despite the popular rhetoric that same-sex relations are ‘un-African’, the article argues that there is an established history of same-sex practices in Africa, and recent media reports point to development in customary law to recognise same-sex marriages. But given the differences in customary law across the country, this may be fiercely contested. Arguably, some versions of customary law do not recognise same-sex marriages. In practice, the courts will have to consider whether to develop customary law to accommodate same-sex customary marriages. The rights of individuals to equality and culture must be balanced against broader understandings of culture and the courts’ role in developing customary law in line with constitutional values. Courts must employ a nuanced development of the law that protects the rights of same-sex couples without undermining customary law.