Marriage In South Africa Research Articles

The ‘Inevitability’ of Same-Sex Marriage in South Africa’s Post-Apartheid State

This article argues that the adoption of the Civil Union Act, extending marriage rights to same-sex couples, does not represent the inevitable and triumphant victory of a long legal and political struggle for the emancipation of gay men and lesbians in South Africa. A combination of luck, wise strategic leadership and fortitude eventually led to the adoption of full marriage rights for same-sex couples. The article traces the roots of this legal and political victory back to the debates about the inclusion of the sexual orientation clause in the South African Constitution and points to the importance of the distinct (conservative) legal strategy employed by the National Coalition for Gay and Lesbian Equality in achieving full partnership rights for all. The initial jurisprudence developed by the Constitutional Court created the basis for later legal victories and brought along judges who might have had some misgivings about the extension of marriage rights to same-sex couples had the issue arisen earlier on. The Constitutional Court’s judgment in Fourie left very little room for Parliament to manoeuvre because it emphasised the symbolic value of marriage and confirmed that a ‘separate but equal’ partnership law for same-sex couples would not pass constitutional muster. However, this important legal victory will not have any direct and immediate bearing on the lives of many gay men and lesbians in South Africa as they face social, cultural and economic hardship in ways that cannot be easily addressed through the legal reform of partnership laws. The improvement of the lives of ordinary gay men and lesbians will go hand in hand with changes in societal attitudes towards minority sexualities, which to a large extent will be dependent on grassroots activism and organisation. Because the battle for full marriage rights was a well directed, elite-based legal battle, it failed to build a sustainable, vibrant, grassroots movement to take on this task but the symbolic space created by the same-sex marriage reform may well begin to allow for the fostering of such a movement and thus for true emancipation of gay men and lesbians.

Case note: Same-sex Marriage in South Africa –the constitutional Court's Judgment

Late last year the Constitutional Court of South Africa decided that the exclusion of same-sex couples from the common law definition of marriage and the statutory marriage formula was unconstitutional as it violated the rights of such couples to equality. The Court suspended the declaration of invalidity for one year to allow Parliament to enact new legislation to correct the defects, failing which certain words would be read into the legislation to accommodate same-sex marriage. A single judge dissented on the issue of remedy, finding that the Court should have developed the common law to include same-sex couples within the definition of marriage and read the necessary wording into the legislation with immediate effect. The decision is the culmination of a legal struggle by gays and lesbians for recognition of their relationships and the protection of their rights. While the scope of the right to marry may have been extended, the rights of domestic partners lag behind, often to the detriment of women in these relationships.

Marriage at the Drop of a Hat: Housing and Partnership in South Africa's Urban African Townships, 1920s-1960s

This paper holds a lens to the politics of marriage in South Africa's urban African townships, by way of a study of so-called 'house marriages': marriages transacted for the sake of a house. This was a mode of marriage that flouted all the established norms of Christian and customary marriage; yet it proliferated, and by the late 1960s, accounted for a significant proportion of partnerships in South Africa's cities and towns. The paper shows that this trend marked in the first instance the increasingly interventionist role played by the South African state in producing the sphere of African domesticity, along with the conditions of sexual and emotional intimacy. But the profusion of house marriages was also bound up with cultural shifts within urban African communities. While house marriages were persistently condemned as immoral and inauthentic by some, other township residents took a different view. Over time, the meaning of these partnerships was refashioned, so that house marriages were increasingly normalized as a legitimate, even respectable, mode of partnership.

Inter-racial Marriages in South Africa

Using the ten percent sample of the 1996 South African census, we examine the rates of intergroup marriage and marriage between linguistic groups in South Africa. Since whites are a small number in South Africa but historically have held most of the power, the analysis provides an interesting context to test the generalizability of theories about inter-racial marriage. We test exchange theory by examining the effects of education on the patterns of intergroup marriage. We do this while controlling for relative group size. Finally, we examine the socioeconomic status of children of mixed marriages to see possible implications of mixed marriages for future generations. Although education is only weakly related to rates of inter-group marriage, it appears to facilitate outmarriage for low-status groups. More minority females than males marry out of their own group, a pattern of intermarriage quite different from that of the United States. This pattern may reflect local norms, or the different racial composition of the two countries. Children of mixed-white marriages appear to do much better economically than children of mixed-black marriages.

Islamic marriages in South Africa: Quo vadimus?

Due to their potentially polygamous nature, Islamic marriages are not recognised in terms of South African law. The consequences of this non-recognition have been particularly unfair to Muslim women. Until 2000 a Muslim woman had no claim for loss of support if her husband was unlawfully killed. Even today she cannot claim maintenance from her husband after a divorce; she is not an intestate beneficiary after the death of her husband; can be compelled to give evidence against her husband in criminal proceedings and can not claim financial support during the course of her marriage. Since early times there have been calls for the recognition of Islamic marriages. The 1996 Constitution of South Africa protects, among other rights, cultural and religious rights and makes provision for the recognition of cultural and religious marriages by means of legislation. This article gives a brief historical overview regarding the position of Islamic marriages in South Africa. Thereafter the current position of Islamic marriages will be discussed, and finally a few comments regarding the future of Islamic marriages will be given.

Transforming Customary Law of Marriage in South Africa and the Challenges of Its Implementation with Specific Reference to Matrimonial Property

This paper briefly discusses the transformation of the customary law of marriage in South Africa by the Recognition of Customary Marriages Act of 1998 Act (hereafter referred to as the Act), and the likely challenges of implementing the new law. The latter will be demonstrated by reference to section 7 of the Act, which regulates the matrimonial property.

Dismantling Assumptions: Interrogating “Lesbian” Struggles for Identity and Survival in India and South Africa

These accounts from India and South Africa demonstrate that contemporary politics of intimacy and survival cannot be approached through frameworks that create a simple binary between the proverbial First and Third Worlds. At the same time they foreground the limitations of feminist theories emerging from Northern academic institutions. Can our existing frameworks adequately represent the struggles of women in same-sex relationships who are located in the most socioeconomically peripheralized areas of the world? Can we analyze the politics of sexuality and intimacy in their lives without diminishing the centrality of neocolonial histories and geographies and their everyday struggles over access to material resources? How if at all can we integrate insights from critical development studies and lesbian studies to address these contradictions and questions? (excerpt)

Legislative Recognition of Muslim Marriages in South Africa

Both theoretically and constitutionally, South Africa is a secular state with many religious and non-religious groupings co-existing with each other. The reality is that there is widespread observance of both religious and customary law — despite a lack of or limited recognition thereof under the apartheid government. The non-recognition of other forms of law in South Africa has had negative consequences and the remedial efforts of the present government is visible both in the area of customary law and also Muslim Personal Law, hereinafter referred to as MPL. This paper will confine itself to discussing the law reform efforts in respect of the recognition of Muslim marriages.

‘I do’ or ‘we Won’T‘: Legalising Same-Sex Marriage in South Africa

The question whether to extend marriage to same-sex couples is likely to be decided by the courts in the near future. The internationaltrends in this regard are inconsistent and often unprincipled because of the interaction between beliefs about marriage on the one hand, and attitudes towards homosexuality on the other. This article argues that, for reasons of principle, the constitutional guarantee of equality and dignity requires the legal recognition of same-sex marriage. A narrow conception of marriage as being limited to heterosexuals deprives lesbians and gays of material and nonmaterial benefits. It also prevents lesbians and gays from being accepted into mainstream society and thereby leading more enriched lives. Due to the recent developments in South African family law that emphasise the importance of cultural diversity, encourage tolerance, and begin to recognise notions of family which do not fit the Judeo-Christian model, there is reason to believe that the common law definition of marriage can be developed to include same-sex partners. Although domestic partnership regimes are often seen as a sufficient alternative to marriage, they deny same-sex partners spiritual and religious equality and as a result do not meet the transformative goals of the Constitution.

Same-Sex Sexual Desire and the Re-Imagining of the South African Family

Many individuals who form same-sex intimate relationships argue that the social and legal protection associated with heterosexual marriage should be extended to their relationships. This is understandable because marriage in South Africa remains the focal point for the protection and regulation of the interests of individuals who engage in intimate relationships of any kind. However, merely extending marriage rights to same-sex couples whose relationships mirror the idealised heterosexual norm will be problematic. Because of homophobia and prejudice many individuals in same-sex intimate relationships will not be able to freely ‘choose’ to get married. Others will form intimate relationships that will not be recognised because they will be insufficiently similar to the traditional heterosexual notion of marriage. Those who do not marry will therefore once again be marginalised and the law will once again fail to protect the weaker and more vulnerable partners in such relationships. The early case law of the Constitutional Court recognised that the right to substantive equality entails a right to equal concern and respect across difference and thus hinted that not only marriage-like intimate same-sex relationships, but also non-traditional forms of suchrelationsh ips should be constitutionally protected and respected. However, later judgments seem to suggest that intimate relationships that stray too far from the model of traditional heterosexual marriage, are less worthy of respect and protection. This narrow conception of what constitutes worthy intimate relationships is deeply problematic, not only for individuals in non traditional same-sex relationships but also for the millions of individuals in different-sex relationships who are not married, because it marginalises them and fails to extend legal protection to some of the most vulnerable members of society. The legal regulation of intimate relationships should therefore completely move away from the marriage model and should instead be based on a functional model which takes account of the unequal power relations in intimate relationships.

Muslim Marriages in South Africa: The Limitations and Legacy of the Indian Relief Act of 1914

Many Muslims in post-apartheid South Africa have been seeking to use the new freedoms of democratic state and its liberal constitution to pursue distinctive rights as part of broader project to construct new and tighter Islamic codes in public and private domains. One example is the call for shariah-based Muslim Personal Law (MPL) in accordance with the South African Constitution which allows for the recognition of 'personal or family law' provided it is not in conflict with the Constitution. A South African Law Commission (SALC) committee headed by Supreme Court Judge Mohamed Navsa released draft Bill on MPL in December 2001. Muslim journalist Khadija Magardie considered it a progressive step towards resolving the mismatch between Muslim personal law and the Bill of Rights, but warned that while it was good news for some, its contents are likely to have some quarters sighing into their three fists long beards.

State, Power and Gender: Conflict over the Registration of African Customary Marriage in South Africa c. 1910–1970

Abstract Since the 1920s, the South African Department of Native Affairs (later Bantu Administration and Development) repeatedly prevaricated about instituting a compulsory national register for African customary marriages, despite having compelling strategic and moral reasons to do so and strong support in some powerful quarters. Even at the zenith of its power in the 1960s, poised for a newly aggressive onslaught on the lives of African people, the Department of Bantu Administration and Development was unusually diffident about creating such a marriage register. This paper uses a case study of these recurring vacillations within the state over registering customary marriages, to illustrate some of the inscriptions of gender in political power. It shows too, that their effects were uneven and contradictory. Struggles over whether or not to create the register included, in fundamental ways, debates about the meaning of ‘patriarchy’ and the manner of the state's powers as its custodian.

Wives for Cattle: Bridewealth and Marriage in South Africa

Wives for Cattle: Bridewealth and Marriage in South Africa

An interpretation of Hindu marriages in Durban

SYNOPSIS In this, the last of three related articles, the writer indicates the main variations in marriage ceremonies of South African Hindus, and interprets the underlying social values. Clear cut differences in social regulations and ritual detail survive between the so‐called “orthodox”, Tamil, and Hindustani, and within these linguistic‐cultural groups are further variations related to caste, modern ideas, alternative books, status of the individuals (widowed, divorced, devotees of specific deities). Brahminic influence is greater among the Hindustani of all castes, than among the Tamil. Marriages of the “reform” groups resemble each other more closely, and are characterized by greater weight being attached to individual choice before marriage; the prominence of the bride, as well as the groom, in the ritual; the irrelevance of caste; and the trend towards simplicity of ritual according to a pre‐Brahminic ideal. Hindu marriages in South Africa are essentially religious and this is clearly recognized b...

Some Aspects of Inter-Racial Marriages in South Africa, 1925–46

Opening ParagraphWhere racial antipathies exist there is a tendency on the part of the dominant group to avoid personal contacts with the subordinate race or races. This is perhaps especially the case in the intimate relationship of marriage. The study of inter-racial marriage data may therefore provide useful indices to changes in caste and class relationships in multi-racial communities. In this paper figures are presented for racial intermarriage in the Union of South Africa since 1925, the year in which it became compulsory to state the race of the contracting parties, and suggestions are made as to possible reasons for the trends which can be observed.

Research Items

PREFERENTIAL MARRIAGE IN SOUTH AFRICA.—In Africa, vol. 1, No. 4, Werner Erselen studies the conditions of marriage among the various races of South Africa in order to show that the property-family marriage entails a number of obligations on the interested parties. When marriage depends, as it does here, on a bride price, the desire of a young man for marriage, entailing payment of property which he has not yet had an opportunity to acquire, ceases to be a matter for the individual and brings in the family. The bride-price is provided by the family. This among the Bantu is in the form of cattle, their only wealth. The types of marriage are cross-cousin marriage, when the children of brothers and sisters intermarry, but the marriage of the children of sisters is forbidden; the sororate, when a man marries his deceased wife's sister, but it is the third and not the second sister who may thus be acquired; and marriage by inheritance when a man's wives are appropriated by his heirs—the principal heir being the eldest son, his own mother going to a younger brother of the deceased. These forms of marriage with their variations in detail are the natural result of a system of contract between two families based on the exchange of women for cattle or other property of equivalent value. Among the Xosa, where the levirate does not exist, a widow may either marry a stranger who repays the cattle originally paid with a discount for each child already born, and retained by the husband's family, or she has to stay with her husband's people. In the latter case children born as the result of intercourse with nonrelated men are looked upon as the legitimate children of her deceased husband.