The law requiring customary marriage to be registered was not made in vain. Despite the evolution of the Act to cover the rights of women in customary marriages, there are still hurdles when it comes to seeking a customary divorce in South Africa. Your rights as a married woman begin even before you get married. A customary marriage, even if unregistered, remains valid it if complies with section 3 of the Act, until proven otherwise. Capacity to enter into a customary marriage: The parties must both be over the age of 18 years, if not, special written consent from the Minister of Home Affairs must be obtained. It is inconceivable that ukumekeza has not evolved and that it cannot be waived by agreement between the parties and/or their families in appropriate cases. Protect your customary marriage rights with a legal one ... it has to be entered into by a man and woman over the age of 18 years who have the intention of getting married under customary … The article will contribute to existing know- Both must have given consent to be married under customary law. “Many women aren’t familiar with what exactly their rights are when it comes to customary divorces,” says Linda Matshoza, a lawyer at LAW FOR ALL. Registration of a marriage is fundamental to the protection of the rights of women and children in customary marriages. You and your husband can choose to enter into a contract called a prenuptial agreement, or prenup, that outlines the terms of the marriage and deals with any eventual divorce or separation. This will impact on the eligibility to inherit from an estate. While in a “normal” marriage the divorce can drag out for months, due to one party refusing to comply, here, everything is more straightforward. The CC held that in the case where there was no dispute to inheritance, the family had to decide whether indigenous laws of succession or the Interstate Succession Act would apply. The CC in Gumede did not deal with the full issue of equality in customary marriages, be it monogamous or polygamous. One of the indications that fundamental rights have priority over customary law 1s that the. See 'Consent to a customary marriage' 16 The practice of Ukuthwala will be briefly discussed in par 4.4 below. The rights of women in customary marriages should be on par with those of spouses married in terms of the Marriages Act, 25 of 1961. However, failure to register a customary marriage does not affect its validity. 1/12/2018 2:00 AM - Cor van Deventer - Property & Conveyancing, Marriage & Matrimonial Property, Legal Services - 0 Comments Property rights and customary marriages. Establishment meetings for the LSSA provincial attorneys’ association, CV portal for candidate legal practitioners, Southern African Development Community Law Society. This requirement is fulfilled when the celebrations are generally in accordance with the customs applicable in those particular circumstances. In Achu v. Achu,4 Inglis, J., posited that : Most people witnessed the South Gauteng High Court in 2018 rule that popular publicist, Lerato Sengadi, was the customary wife of late hip-hop star, Jabulani Tsambo aka HHP. 2. Customary law wives now have the same protection and rights as civil law wives. 1.2 Impact of Customary Law on Women and their Rights It is trite that customary law has a disproportionate discriminatory impact on women when compared to men. The Amendment Bill as envisaged is expected to have a significant bearing on the previously disenfranchised sector of the South African community and it is, therefore, imperative to fully understand its impact as it relates to one’s rights in respect of customary marriages. We'll assume you're ok with this, but you can opt-out if you wish. According to the Glossary of The Marriage Contract in Islamic Law in the Shari'ah and Personal Status Laws of Egypt and Morocco, "zawaj urfi" is a customary marriage (1992, 165).In The Laws of Marriage in Islam the meaning of customary marriage is further explained:. In these cases, the woman who claims to have been married to the deceased must prove that a customary marriage existed before the distribution of the estate can be addressed. Appendix 1 THE SOUTH AFRICAN LAW COMMISSION. Downloadable! Under customary law, parties do not have equal rights in matters of marriage, dissolution and right of property because marriage is a union between two families (22). You also have the option to opt-out of these cookies. Interim measures for customary marriages concluded before the commencement of the Act up to the passing of the amendment to the Act would include: Should parliament fail to amend the required legislation within the allocated time of two years, the interim measures shall continue to apply. The government has passed a new bill that provides for the equal treatment of women in monogamous and polygamous customary marriages in SA, … Marriage has been defined as a voluntary union between a man and a woman or women (in the case of customary marriage) for life to the exclusion of any other. In other words, it is a legal union which exists between a man and a wife(s). The practice is acceptable world over and it is usually legally recognized. 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Customary law confers very restrictive rights to women in the event of dissolution hence a woman is only allowed her personal property known as “mawoko” property. Contracting a marriage under African customary law in Malawi poses dif-ficulties and challenges in the light of the Bill of Rights and international human rights standards. The CC dealt with the proprietary and personal rights of a female in a monogamous customary marriage, but failed to extend its judgment to the consequences of a polygamous marriage entered into before the commencement of the Act. The divorce process of a customary marriage is much simpler than of that under the Marriage Act. The marriage must be negotiated, entered and celebrated in terms of customary law. ; Any rights to property or rights of control or management over property that may have vested in or accrued to a wife in a polygynous customary marriage, before or during her marriage, and which confer greater eights to property than those she would be entitled to in terms of the interim regime… Indeed upon divorce the woman has little or no rights over property. The Act gives recognition to marriages that were concluded before the Act was promulgated. The focus on gender equality, in particular the rights of women in South African society, has come under the spotlight to the extent that amendments to current legislation is being implemented via the amendment of s 7 of the Recognition of Customary Marriages Act 120 of 1998 (the Act). mere mention of wives or women did not mean that the appellant was not legally married customarily to other women. Interpretation: If a man has more than one wife he can register each of his marriages. Marriage is based on the truth that men and women are complementary, the biological fact that reproduction depends on a man and a woman, and the reality that children need a … A woman in a customary marriage was deemed to be a minor, and of a lower status than her husband and she was thus subject to his marital power. Marriage has been defined as a voluntary union between a man and a woman or women (in the case of customary marriage) for life to the exclusion of any other. In other words, it is a legal union which exists between a man and a wife(s). The practice is acceptable world over and it is usually legally recognized. This website uses cookies to improve your experience. This law defines “customary marriage” as the marriage between a man and a woman performed according to the tribal tradition of their locality and provides that a wife’s rights and duties within a customary marriage are the same as a wife’s rights and duties in a statutory marriage (a statutory marriage is a civil marriage license under the Domestic Relations Law). Section 7(1) of the Act indicates that the proprietary consequences of a customary marriage entered into before the commencement of the Act would continue to be governed by customary law, and s 7(2) provides that a monogamous marriage entered into after the commencement of the Act will be classified as a marriage in community of property and the parties to the marriage will have the option to have their marriage governed by an antenuptial contract. This article was first published in De Rebus in 2020 ( Aug ) DR 12 being in... 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