Moves to grant legal recognition to customary marriages have opened the door to changes in the law’s view of who may marry whom, writes Ann Eveleth
MARRIAGE law will change significantly if proposals tabled by the Law Commission last week are accepted. Yet the integration of customary and common law has complex implications for both traditional communities and society at large.
The Law Commission’s issue paper on the “Harmonisation of Common Law and Indigenous Law” cites a dozen potential areas of conflict between the constitutional rights of the new South Africa and the rules and practices of customary marriages. Project leader Professor Thandabantu Nhlapo, however, argues the current situation holds far greater contradictions.
“It was always an insult to my parents to be told they were just co-habitating because the old colonial-based legal system did not recognise their marriage. Our starting point is that non-recognition of customary marriages is totally unacceptable under the present Constitution.”
The constitutional ban on cultural and religious discrimination implies an end to the days when only Christian and civil marriages gave legal legitimacy to a family unit, but the extension of recognition to other forms across South Africa’s rich cultural tapestry poses as many questions as it answers.
Human rights lawyers this week agreed the present situation is untenable, but argued the legalisation of polygamy posed potential conflicts between cultural freedoms and the right to gender equality.
Jenine Hicks, a representative of Durban’s Community Law Centre who has worked extensively in rural KwaZulu-Natal, said the commission was “jumping the gun” by forwarding proposals before researching the views of rural women affected by polygamy and other aspects of customary marriage.
“It’s outrageous to say only Christian or civil marriages are recognised, but rural women I’ve worked with say polygamy as a system has to go,” she said. “Traditional men say its essential to being a Zulu, but the women say it oppresses them.”
Nhlapo agreed the commission would have to “walk a political tightrope” on the issue and that the consultation period may need to be extended to canvass sufficient views, but warned against allowing the polygamy debate to pose the main obstacle to the recognition of customary marriages.
The commission questioned whether the practice of polygamy could be balanced with the Constitution’s gender equality clause, but warned against an outright ban on polygamous marriages as this would be “extremely difficult to enforce. Moreover, there is some evidence that in a patriarchal world, where there is no economic, social or political equality between men and women, it is the institution of marriage itself, whether monogamous or polygamous, which disadvantages women.”
Nevertheless, the commission argued the principle of equality would “frequently be in conflict with the patriarchal principles pervading much of customary law”.
Some potential conflicts included:
* the customary provision requiring a woman to gain the support of her guardian for marriage;
* whether lobola should be allowed to influence the validity of the marriage;
* the provision in the “official” version of customary law which deems wives of customary marriages as “minors”;
* the lack of decision-making power of women on issues such as birth control, guardianship of children and the purchase or alienation of family property;
* the lack of protection for family members from “inept or unreasonable conduct” by the head of the family;
* the wife’s forfeiture of family property upon divorce;
* the lack of maintainence provisions within customary law.
Nhlapo said he believed it was possible to remove the patriarchal aspects of customary law while keeping the institution intact.
“What we are going to do is dignify traditional families based on a particular worldview of kinship, but also say, `This is 1996 and if you had practised oppression in the past, then stop it.'”
He said this would help to advance customary law, which was presently a mix of widely- varying “living law” or oral custom and codified or “official” customary law as entrenched in kwaZulu-Natal: “Customary law has been neglected and has not kept pace with changing social circumstances. Removing the discrimination against it presents the chance to improve it and bring it up to date,” he said.
Nhlapo said the commission would begin “scouring the countryside” for views which would influence its final report. Legislation was expected to be tabled by mid-1997.