Chapter 7: Marriage Flashcards
(38 cards)
Five features that distinguished customary marriages from those approved by the law
- Polygyny was not only tolerated but even approved
- Validity of union dependant on payment of lobolo
- Relationship was between two families rather than two individuals
- The union was achieved gradually over time
- Marriage was a private affair
Overview of recognition of customary marriages
- Customary marriage was a private matter
- Validity of union did not depend on the intervention of any third party, apart from the families involved in the union
- Women were regarded as perpetual minors
- Husbands exercised marital power
Sihele case
- Union founded only upon Native customs
and usages within the Colony is not a marriage.
Seesdat’s Executor case
Marriage defined as voluntary union for life of one man and one woman set out in the case of Hyde v Hyde.
Customary marriages not recognised because they offended against public policy.
The effects of non-recognition of customary marriages
- ‘Spouses’ not considered to be husband and wife
- No duty of support
- Children considered to be illegitimate
- Marriage by civil rites extinguished the customary marriage
Forms of Limited Recognition
- Statutory enactments provided limited recognition
- Sought to alleviate the plight of spouses
- Examples included inter alia:
The Income Tax Act
The Maintenance Act
Black Laws Amendment Act
Polygamy
A practice according to which a married person has more than one wife or husband at the same time.
Polygyny
A version of polygamy where the husband has more than one wife; used interchangeably with polygamy in South Africa
Polyandry
A version of polygamy where the wife has more than one husband
The Preamble of the RCMA (Recognition of Customary Marriages Act)
- Make provision for the recognition of customary marriages
- Specify the requirements for validity
- Regulate registration, proprietary consequences, and dissolution
- Provide for the equal status and capacity of spouses in these marriages.
What the RCMA sought to do
i. Attack patriarchy
ii. Eradicate the inequality between women and men
iii. Improve the position of children
S1 of the RCMA
Defines customary marriage as a marriage concluded in accordance with customary law.
Defines customary law as ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’
What does the RCMA grant in terms of equality?
● RCMA grants equal recognition to customary marriages concluded before and after the commencement of the RCMA
● Whether monogamous or polygamous
What changes did the RCMA made?
Changes include inter alia:
i. Equal status of the spouses
ii.Reconfiguring the matrimonial property system
iii.Court-granted divorces
* RCMA also affirms the best interests of the child
Mayelane v Ngwenyama
Section 7(6) of the RCMA reads as: A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.
CC: first wife needs to give consent for the second marriage
Changes that the RCMA imposed
- Some of these changes include equal status of spouses;
- Reconfiguring the matrimonial property system; and
- Introducing court-granted divorces.
Legal Requirements for a valid customary marriage concluded before 15 November 2000
- The RCMA recognises as valid, all marriages concluded before 15 Nov 2000, whether monogamous or polygamous.
- Customary law is applicable to these marriages
- Problems of ascertainment
- Alleviated by the Codes of Zulu Law
- The Codes regulated marriages concluded in KwaZulu Natal
Validity Requirements under the Codes of Zulu Law
i. Consent of the father or the guardian of the prospective wife
ii. Consent of the father of the guardian of the prospective husband
iii. Declaration in public by the prospective wife that she voluntarily submits to the marriage
Legal requirements for customary marriages in other parts of South Africa concluded before the commencement of the RCMA
- Consent of the father or guardian of the prospective husband
- Consent of the father or guardian of the prospective wife
- Consent of the prospective husband
- Consent of the prospective wife
- Handing over of the bride
- Agreement that lobolo will be delivered
- No existing civil marriage
Problems with essentials or requirements of customary marriages concluded before the RCMA
● Consent of the father/guardian of prospective husband subject to a
number of factors
● Consent of wife and husband seems open-shut
● Some of other ‘essentials’ listed are not customary law
● Most essentials difficult to work with at certain times
Only three essentials or requirements are free from contention:
I. Consent of prospective bride
II. Agreement on lobolo
III. Handing over of the bride
Validity requirements for marriages concluded after 15 Nov 2000
Section 3(1) sets ou the requirements
Section 3(1)(a)
* Must be above the ages 18 years
* Must both consent to be married under customary law
Section 3(1)(b)
* Negotiated and entered into or celebrated in accordance with customary law
Maluleke v Minister of Home Affairs
● Court considered meaning of words of s 3(1)(b)
● Negotiated refers to negotiations in respect of the marriage
● Dispute over whether marriage was ‘entered into or celebrated’
● Court accepted definition of Oxford Dictionary
● Celebrated refers to festivities or performance of rite or ceremony
● Negotiations form part of fundamental stage in conclusion of marriage
● Parties must agree they are married, explicitly or implicitly
The issues relating to Section 3(1)(a)
● In line with Children’s Act and country’s international law obligations
● Blow against child marriages
● Empowers prospective husband and wife
● Distorts the practice of Ukuthwala
