Marriage In South Africa Research Articles

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

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.

Book Review: Mukaddam F Muslim Women between Community and Individual Rights: Legal Pluralism and Marriage in South Africa (Springer Nature Switzerland 2024)

This review examines the book by Fatima Mudakkam titled Muslim Women between Community and Individual Rights: Legal pluralism and Marriage Rights in South Africa (2024). The book explores the pluralistic nature of South Africa’s national legal system, focusing on the experiences of Muslim women governed by Muslim Personal Law. It provides a critical analysis of how this legal pluralism affects Muslim marriages and the civil rights of women within these marriages. The book is an essential contribution to the ongoing discourse on gender justice and legal pluralism in South Africa.

The Proprietary Consequences of Customary Marriages: Challenges in the New Regime(s)?

The law governing marriage in South Africa is in transition. There are currently two proposals to reform the proprietary consequences of marriages in South Africa, namely a Marriage Bill [B43-2023], and a South African Law Reform Commission Discussion Paper to review aspects of matrimonial property law. This article assesses the effectiveness of the proposed reform in addressing the current regulatory challenges related to the proprietary consequences of customary marriages. It argues that the piecemeal jurisprudential development of the law has not been effectively reconciled, and this must be addressed in any future reform. However, the Marriage Bill proposed by the Department of Home Affairs is not an answer. The Bill ignores customary notions of property and creates several conceptual difficulties such as potentially leaving customary law marriages without a matrimonial proprietary regime. The South African Law Reform's Discussion Paper, which reviews aspects of matrimonial property law, holds great promise because it proposes a change in the default matrimonial proprietary system and the exclusion of family property from the marital estate. The proposals must be reconciled and informed by living customary law practices to deliver the much-anticipated law reform.

A duplication of marriages? An ethnographic account and assessment of the necessity for both traditional and Christian marriages for African Christians

This article is based on ethnographic research for a doctoral study that was conducted in 2016 among the Ndau people of Chimanimani, Zimbabwe. The article described and assessed the practice of some African Christian churches, especially missionary founded churches, to conduct ‘white church weddings’ after getting married customarily. The study employs a postcolonial approach as a theoretical lens. It argues for a hybridized form of Christian marriage that takes into cognizance the validity of African customary marriages in and for themselves, while at the same time appreciating the importance ascribed to ‘church weddings’ in especially missionary-founded churches. The study uses the case study of the Ndau people, but the phenomenon is widely practised among African Christians across the continent. In the article, doctoral thesis findings were related with Erlank’s (2014) work on marriages in South Africa. The article offered description, critique (postcolonial, gender, class), and suggested interventions. Critical phenomenology was utilized to assess the findings and to expose the power relations that exist in the hierarchical treatment of African customary marriages as of an inferior status compared to church weddings. The economic aspect of the duplication of marriages was also foregrounded. The article underscores the importance of ethnographic research on religion as a human phenomenon in Southern Africa and beyond, as well as a critical assessment of the phenomenon. It provided several possible interventions for African missionary-founded churches.

Recognising form through function in the context of integrating the bride requirement in customary marriages in South Africa

In previous scholarship we argued how the state and courts have tended to favour a formal or definitional approach to customary marriages in South Africa, leaving vulnerable parties, particularly women, not adequately protected. In this article we focus on a new approach emerging from the courts, particularly relating to the integration of the bride as a requirement for the validity of a customary marriage. While we affirm the courts' emerging approach regarding integration, we take issue with the language used by the courts, particularly that relating to the word 'waiver'. In considering the recent South African Supreme Court of Appeal decisions on integration, and the High Court decisions that have followed, we believe the courts are in fact not waiving the requirement, but recognising that the requirement of integration may be met in another way. In considering these cases, although the court does not explicitly rely on Ramose's 'social acceptance' thesis as to the validity of law, we believe that adopting this approach will do much to assuage concerns about courts ignoring custom. More importantly, Ramose's 'social acceptance' theory gives credit to living customary law as a legal system which, as widely observed, promotes the very values on which the Constitution is founded. We also believe that Ramose's approach is a much more balanced approach in this context than a typically Western approach that promotes certainty over the protection of vulnerable parties, and represents the very evolving nature of living customary marriage laws and practices.

An Appraisal of the Requirements for the Validity of a Customary Marriage in South Africa, Before and After the Recognition of Customary Marriages Act 120 of 1998

This article appraises the requirements for the validity of a customary marriage. It peruses two eras separated by a statute called the Recognition of Customary Marriages Act 120 of 1998 (RCMA). Prior to delving into what the requirements for validity before the RCMA were, the article differentiates between peremptory and directory provisions. These terms are usually applied in interpreting statutes. They also find application in determining the requirements of the validity of customary law. The era before the RCMA lists essential requirements for a valid customary marriage. The gist of these requirements is as follows: consent of the bride and bridegroom (spouses), consent of the bride’s father or guardian (parents), payment of lobolo, the handing over of the bride and the absence of a civil marriage by either spouse. If any of these requirements were not met, there was no valid customary union. The RCMA added more requirements which seem to address formal and customary law requirements. Both prospective spouses need to be 18 years or older, with certain exceptions, and must consent to getting married in terms of customary law. These requirements are peremptory. The customary law requirements relate to the negotiation and celebration of such a marriage. These requirements remain essential. Unlike formal requirements, these requirements allow indigenous African people a certain latitude. As a result, they are directory. This article further deliberates on certain issues regarding the requirements of customary marriages that became contentious. This includes the delivery of lobolo, the handing over of the bride, polygamous and dual marriages, and the registration of customary marriages. In conclusion, it is shown that customary law is a rapidly growing independent source of law. The requirements for validity must be comprehended with this flexibility in mind and should not unnecessarily be held as being static.

A Critical Legal Analysis of the Effect of the Proposed ‘Two-Pot System’ on Spouses in Unregistered Customary Marriages in South Africa

Abstract For the first time in the history of South African pension laws, a system is proposed that will enable pension fund members to access a portion of their pension benefits while still actively employed. The proposed system seeks to provide pension fund members with financial relief without requiring them to quit their jobs due to financial strain. This paper commends the government’s initiative in response, among others, to the financial problems caused by the coronavirus disease (COVID-19) pandemic. This paper argues, however, that despite the potential beneficial effects the system may have on pension fund members, it may introduce new challenges that pension fund stakeholders have never faced before. This paper aims to highlight a potential defect in the proposed system, particularly in cases where pension benefits are included in the joint estate of a pension fund member. South African customary marriages, whether or not they are registered, are by default in community of property. The pension benefits of a member who is a spouse in these marriages form a part of the joint estate. This paper examines and proposes solutions to the challenges that the proposed system may present to spouses in unrecorded customary marriages.

Multilevel modelling of the determinants of early marriage among women aged 20-49 years in South Africa.

Early marriage is a societal problem that affects many young women in developing countries. There are not many studies which have focused on the determinants of early marriage in South Africa. This study aimed to examine multilevel determinants of early marriage among women in South Africa. We used cross-sectional data from the 2016 South Africa Demographic and Health Survey. We found that age, level of education, spousal/partner educational differences, age at first sex, parity, household wealth, community poverty, place of residence, and province were statistically associated with early marriage. We also found that women with primary education, women from poor households, from Limpopo, Mpumalanga, Gauteng, and Free State had higher odds of early marriage. Our findings underline the need for public awareness campaigns, geared towards teaching rural communities about the various laws that protect children from early marriage and related practices.

Shifts in the Trend and Nature of Migration in the Ethiopia-South Africa Migration Corridor

Over the past 25 years a significant (but unknown) number of migrants from Ethiopia have been migrating to South Africa through the “southern route.” This male-dominated migration is becoming more and more irregular and includes multiple transit countries, largely controlled by human smugglers. The size of the Ethiopian immigrant population in South Africa has increased. The profile of individuals on the move has also changed in terms of migrants’ age, ethnicity, place of origin, gender and socioeconomic status. Youth from rural areas have joined the migration trail, and, increasingly, women are migrating for marriage in South Africa. Today, migrants from southern Ethiopia (Hadiya and Kambata) dominate Ethiopian migration to South Africa. The age and socioeconomic status of the migrants have also changed where teenagers, college graduates and civil servants are entering the migration stream in recent years. Equally changing is the nature and operation of the smuggling and settlement processes. Like the broader field of migration studies in which source and destination countries receive the overwhelming focus, the multiple transit countries Ethiopians on the move to South Africa travel through, and the migration journeys themselves, have not received adequate research attention. The effects these journeys have on the settlement processes are also largely ignored. This article, therefore, explores these emerging patterns with a view to understanding the inequalities faced by Ethiopian migrants on their journey to South Africa and the factors behind it. With the intensification of border closures due to multiple factors, including the COVID-19 pandemic, we examine the shift in the nature and trend of smuggling and how it is reflected in inequalities experienced by Ethiopian migrants in South Africa.

Termination of Muslim marriages in the South African legal context: Understanding the challenges

Muslim marriages are not recognised in South Africa and therefore divorces are not regulated by the courts. There are multiple methods of terminating a Muslim marriage; this is not the position with civil marriages in South Africa which are terminated through the divorce proceedings set out in the Divorce Act 70 of 1979. Due to the non-regulation of Muslim marriages, many abuses occur when parties terminate their marriages. With regard to the implementation of Sharī`ah in South Africa, much has been written about the recognition of Muslim Personal Law (MPL). There is a need for research which goes beyond identifying individual challenges and which aims to achieve a more holistic analysis, exploring the root causes of the abuses that could arises in the event that a Muslim marriage is terminated. The purpose of this enquiry therefore is to examine these possible systemic causes and to suggest proposed solutions. This contribution commences with a review of the laws, procedures and institutions regulating the termination of Muslim marriages in South Africa. Challenges with regard to such terminations are then explored and analysed. In conclusion, some remarks are made in respect of addressing the challenges holistically.

Comment on the Single Marriage Statute: Implications for Customary Marriages

The South African Law Reform Commission is currently canvassing views on a potential single marriage statute that would reconcile the several enactments currently regulating marriage in South Africa. This comment considers the implications of the proposed Bill for the regulation of customary marriages. It argues that the definition of a marriage / life partnership may be under-inclusive and must be expanded to included polygamous – rather than polygynous – relationships without a religious or cultural basis and life partnerships where the partners are not cohabitants. Furthermore, while the Bill is commended for requiring a husband to obtain the consent of existing wives before he enters into a further customary marriage, the Bill must give meaning to the notion of consent. Finally, the Bill must address existing issues within the Recognition of Customary Marriages Act 120 of 1998 which have invalidated a range of customary marriages too often at the expense of women.

SAME-SEX RELATIONS AND LEGAL TRADITIONS IN CAMEROON AND SOUTH AFRICA

AbstractThis essay revisits the debates and legal contests that grew in Cameroon at the turn of the millennium but failed to bring justice for members of the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community. Several members of sexual minorities were tried in Cameroon courts and sentenced to serve jail time. In order to reflect on the state of legal limbo for LGBTQ people in Cameroon, I also revisit the South African caseMinister of Home Affairs and the Director General of Home Affairs versus Marie Adrianna Fourie and Cecelia Johanna Bonthuys, which led to legalization of same-sex relationships and marriage in South Africa. In the first and longer part of the essay, I discuss the situation in Cameroon and South Africa. In the second part, I briefly discuss the different legal outcomes in the two countries. I conclude with a brief discussion of signs of hope in the critical dialogue on justice in the debate on same-sex relations in Africa. My goal in this essay is not to offer expert opinion on the legal entanglements on the question of same-sex relations, but to demonstrate that legal and constitutional protections offer the best chance for gaining the rights of LGBTQ people in Africa.

KOS v Minister of Home Affairs and its relevance to the law of marriage in South Africa

This article reviews the applications of three transgender persons to have their new identificatory details recorded in the relevant population registry, and to have suitably adjusted identity docu...

Where is the queer critique of same-sex marriage in South Africa?

ABSTRACTThis article argues for the necessity of a queer anti-homophobic critique of same-sex marriage in the South African context. The literature on same-sex marriage in South Africa before and after the passing of the Civil Union Act 2006, while acknowledging queer critique, resolves such critique in favour of the ‘right’ to marry. From a queer point of view, same-sex marriage is problematic because it renews the distinctions between moral and immoral, it is antithetical to the politics of the gay and lesbian movement, it ‘undoes’ a long history of feminist research where it is argued that marriage is patriarchal and oppressive and finally, it cannot transform the exclusionary nature of marriage. I use Jane Bennett’s ‘“Solemnis(ing) beginnings”: Theories of same-sex marriage in the USA and South Africa’ (2015) as evidence of the most recent example of this point of view. In the course of my critique of Bennett’s article, I will also refer to all of the published literature on the same-sex marriage debate in South Africa. I argue that the opportunity to incorporate queer critiques of same-sex marriage might have been lost 12 years ago but there is no reason why we cannot have these conversations now. The aim of this article is to ignite such a conversation.

Changes in Interracial Marriages in South Africa: 1996-2011

The present study used census and survey data from 1996 to 2011 to examine changes in interracial marriages in South Africa a generation after the establishment of democracy in that country. While in-group marriages appear to be the norm, they have been declining dramatically over the years, especially amongst Asian/Indians and whites, the two groups least likely to marry outside their group. In fact, the odds ratio for overall in-marriage dropped from 303 in 1996 to 95 in 2011. Increased educational attainment increases the odds that black Africans and coloureds would marry Asian/Indians and whites and vice versa. Regardless of gender and of whether education is increasing or reducing the odds of intermarriage, the effects of education are declining over time suggesting the erosion of the social class differences between the races in South Africa.

Something old, something new: Historicizing same-sex marriage within ongoing struggles over African marriage in South Africa

This article examines contemporary struggles over same-sex marriage in the daily lives of black lesbian- and gay-identified South Africans. Based primarily on 21 in-depth interviews with such South Africans drawn from a larger project on post-apartheid South African marriage, the author argues that their current struggles for relationship recognition share much in common with contemporaneous struggles of their heterosexual counterparts, and that these commonalities reflect ongoing tensions between more extended-family and more dyadic understandings of African marriage. The increasing influence of dyadic understandings of marriage, and of associated ideals of romantic love, has helped inspire same-sex marriage claims and, in many cases, facilitate their acceptance. At the same time, continuing contestation over such understandings helps drive instances of opposition.

Same-sex marriage in South Africa: The road ahead

In hierdie bydrae word die problematiek oor "huwelike" tussen persone van dieselfde geslag aan die orde gestel. 'n Oorsig word gebied oor die verskillende fasette van die debat en die argumente wat tipies daarin aangevoer word. Op grond van 'n teoretiese verantwoording oor die aard van die huwelik word standpunt oor hierdie kwessie ingeneem. Nadat moontlike modelle oorweeg is word daar met inagneming van grondwetlike oorwegings 'n aanbeveling oor hierdie aangeleentheid gedoen.

Polygynous Muslim Marriages in South Africa: Their Potential Impact on the Incidence of HIV/AIDS

This article examines whether there is any relationship between the institution of polygynous marriages in Islam and the incidence or spread of the disease. It is suggested that, while polygyny may be a contributing factor, it is not the institution of marriage per se that relates to the disease (although the prospect of greater infection intra marriage must be present in polygynous marriages, if the husband is the infecting party), but the conduct of the parties to the marriage relationship, whatever its nature.The focus and thrust lies with the institution of polygyny in Islam, the South African response to polygyny, the (potential) impact of polygyny on the incidence of AIDS, and the contribution that both an informed approach to HIV and an enlightened approach to the application of Islamic values could or would have on the limitation of the disease's spread

FRAMING AND COMMUNITY BROADCASTING ON FAMILY DEVELOPMENT ISSUES IN SOUTH AFRICA: A CONTENT ANALYSIS OF SETSWANA AND SESOTHO LANGUAGES

Ponte Academic JournalOct 2017, Volume 73, Issue 10 FRAMING AND COMMUNITY BROADCASTING ON FAMILY DEVELOPMENT ISSUES IN SOUTH AFRICA: A CONTENT ANALYSIS OF SETSWANA AND SESOTHO LANGUAGESAuthor(s): Choja Oduaran ,Nelson Okorie, Marilyn SetlalentoaJ. Ponte - Oct 2017 - Volume 73 - Issue 10 doi: 10.21506/j.ponte.2017.10.8 Abstract:The idea of community broadcast in the African continent is aimed to enhance citizen participation and grass-root development. This study investigated the extent to which community radio makes use of indigenous languages to give attention to family development issues in South Africa. This study was anchored on the framing and ecological system theories, which stipulate that community radio has the capacity to place emphasis on a specific angle of a news story or socio-cultural issue. The method used for data collection was content analysis, which provided qualitative and quantitative data to achieve the objectives of the study. The results indicated that almost 45% of family development issues focused on challenges of marriage in South Africa; more than 19% of family development issues were centered on youth and young people. The challenges of marriage were at the focal point of debate and discussion on family development issues. The study concluded that community radio operatives must work hand-in-hand with psychologists and counselors in message creation for broadcast programming so as to address the perennial socio-cultural issues plaguing the African continent. Download full text:Check if you have access through your login credentials or your institution Username Password

The essence vindicated? Courts and customary marriages in South Africa

The essence vindicated? Courts and customary marriages in South Africa