Module 8 Flashcards
(34 cards)
When did the Recognition Act come into existence?
Recognition of Customary Marriages Act came into existence in November 2000, to regulate customary marriages.
What is customary law in section 1 of the REcognition Act defined as?
Customary law is defined by section 1 of the Recognition Act as the customs and usage traditionally observed among the Indigenous African peoples of South Africa and which form part of culture of those people
How was customary law treated in colonial times?
During colonial times customary marriages were treated differently from civil marriages, this included a separate court system. Colonial legal systems often retained pluralism in relation to marriage and inheritance but imposed colonial rules in areas of commercial importance.
What are the common elements in South Africa customary marriage?
- Linkage between families- cooperation and involvement of the families is important
- Payment of lobola
- Possibility of polygyny (more than one woman)
- Communal ownership of marital property
What does section 2(1) of the Recognition Act state?
Section 2(1) of the Recognition Act states that a valid customary marriage is for all purposes recognised as a valid marriage. Customary marriages now have the same status and standing as non-customary civil marriages.
What is the objective of the Recognition Act?
The objective of the Recognition Act was to improve the position of women in customary marriages and in this way ensure that the customary marriage rules don’t infringe section 9(3) of the Constitution.
Which marriage takes precedent customary and civil marriage?
Civil marriage took precedence and ‘dissolved’ customary marriages. They were different property systems applying to customary marriages than those to civil marriages.
What are the requirements for a valid customary marriage according to section 3 of the Act?
- Both prospective spouses must be 18, if under 18 consent from guardians and the Minister of Home Affairs is needed
- Both must consent to the marriage
- No one must be a spouse in an existing civil marriage with another person
- The marriage must be entered into and celebrated in accordance with customary law
What are the 3 requirements of celebrating a customary marriage in the Motsoatsoa v Roro case ?
- The families must negotiate and agree on the marriage - their must be a negotiation between representatives of the two families in which they agree that the two families will be linked through the proposed marriage
- Bridewealth must be agreed upon however it doesn’t have to be paid in full or at all and doesn’t have to be in cattle.
- The bride must be handed over to the groom’s family
What is stated in Mabena v Letsoalo case?
In the Mabena v Letsoalo case it was stated that the negotiation of bridal wealth can be negotiated by mothers, and received by them when the father has abandoned the family.
What are the cases that deal with the handing of the bride?
In Mbungela v Mkabi case it shows that the handing over of the bride is not an absolute requirement and can be waived by the families. The marriage will still be a valid civil marriage. As stated in Malukeke there must be some evidence that the wife has been formally incorporated into the husband’s family
What does section 3(6) of the recognition Act state?
Section 3(6) of the recognition Act provides that spouses may not conclude a customary marriage if they are prohibited from marrying each other by blood or affinity
What does section 10(4) of the recognition Act state?
Section 10(4) states that people who are involved in a civil marriage may not enter into a customary marriage during the subsistence of the civil marriage
How can parties enter into a customary and civil marriage?
To get into a customary marriage and a civil marriage it needs to be between two of the same people, and only when the customary marriage comes first. If you have a civil marriage then a customary marriage your customary marriage is not recognised
When can a customary marriage be polygamous?
- The recognition act provides for polygyny, it is possible for a man to have more than one wife simultaneously.
- A marriage to a second wife must meet all the requirements of section 3.
- In the Mayelane case it was found that if the first wife is not informed of the impending marriage, the second marriage will not be recognised.
What does section 4 of the Recognition Act state?
Section 4 of the Recognition Act states that the marriage must be registered by any of the spouses within 3 months. Although it is compulsory, failure to register does not render the marriage invalid, you can still prove the marriage through other means. Customary marriage entered into before the commencement of the Act must be registered within 12 months.
What does section 4(4) of the REcognition Act state?
According to section 4(4) if the registering officer is satisfied that the spouses concluded a valid customary marriage, they will register the marriage by recording the identity of the spouses, the date of the marriage, any lobola agreed to and other prescribed particulars, then a marriage certificate will be granted. The registration provides prima facie proof of the marriage
What does MG v BM state?
In MG v BM the court held that post mortem registration is allowed.
What does section 6 of the Recognition Act state?
Section 6 of the Recognition Act provides for the equal status and capacity of spouses. The abolition of marital power and equalisation of the spouse’s status and capacity is one of the important changes to the traditional patriarchal nature of customary marriage. This applies to both polygamy and monogamous marriages
What does section 4(7) of the REcognition Act state?
Section 4(7) of the Recognition Act empowers the court to cancel the registration of a customary marriage upon application
What is the matrimonial property system in customary marriages according to the Recognition Act?
The Recognition Act states that monogamous marriages concluded after the enactment of the Recognition Act are in section 7(2) it states that the marriages are in community of property as applied by civil marriages and is the default. Spouses in customary marriage can conclude an ANC to introduce accrual or if stated to exclude it
What is the patrimonial property system in customary marriages according to the Recognition Act?
The patrimonial consequences of monogamous marriage are regulated in the same way as civil marriages. If spouses in a customary marriage enter into an antenuptial contract that excludes community of property their marriage will be subject to the accrual system according to section 2 of the Matrimonial Property Act, unless expressly excluded.
What was held in Gumede case?
In the Gumede case, Mrs Gumede married in terms of the Zulu custom and challenged the rules that gave her husband everything but left her penniless. The Constitutional Court found that the sections of Zulu code were unconstitutional because they constituted unfair discrimination on the grounds of sex and gender. Section 7(1) and (2) of the Recognition Act were unconstitutional and invalid because they discriminated against women depending on when they had married.
What was the held in Gumede regarding the matrimonial property systems of monogamous marriages before the Recognition Act?
The court held in Gumede that all monogamous customary marriages entered into without an antenuptial agreement should be deemed to be in community of property, regardless of the date of the marriage. Spouses who entered into a monogamous customary marriage after the commencement of the Recognition Act may apply to change their matrimonial property system in terms of section 21 of the Matrimonial Property Act.
