The Women’s Legal Centre (WLC) strongly believes that if we want womxn in South Africa to enjoy the full benefit of legal protection in their personal relationships, we must make it easier for them to register customary marriages and ensure that existing relationship-related rights are also practically extended to all customary marriages.
A low rate of registration for customary marriage
There are numerous reasons for the low rate of registration of customary marriages in South Africa at present. The Statistics South Africa Marriage and Divorce Report for 2019 tells us that only 2 789 customary marriages were registered with the Department of Home Affairs in that year.
In some instances, this may be because spouses feel that customary solemnisation of their relationship alone is sufficient. Indeed, customary solemnisation is sufficient for the purposes of the Recognition of Customary Marriages Act 120 of 1998, which states that a customary marriage does not need to be registered to be valid. In reality, however, the many experiences of womxn — including many represented by the WLC — is that without registration and a marriage certificate, the available legal protections remain beyond the reach of many. Without registration, many of these marriages are deemed to be non-existent and therefore do not attract any rights and obligations.
In other cases, however, many womxn would at the outset like to register their customary marriages but are unable to do so for practical reasons. As is borne out by numerous reports of womxn who seek assistance from the WLC, many womxn in South Africa find it difficult to physically get to the department of home affairs with their spouse and the requisite two witnesses from each side of the family to ensure the registration of their marriage.
It is our experience that many male spouses in such situations refuse to register their marriage in the knowledge that they stand to benefit by not having their marriages legally recognised in the absence of registration. Because there is a requirement for spouses to attend in person, they can simply frustrate the process by refusing to accompany their spouse to the department of home affairs.
The WLC has also documented a long history of spouses denying the existence of their customary marriage at the time of divorce and division of estates, or family members who often deny the existence of a marriage to benefit from the proceeds of a deceased estate in cases of death. While we have seen some of these cases reported in the media when well-known celebrities have passed on, it is the story of the ordinary South African womxn that far too often gets no attention. These are the stories of womxn who are simply not able to litigate to vindicate their rights. In some cases, the denial or dishonesty also includes spouses who deny the existence of a marriage when entering a second marriage.
In addition to the challenges with spouses and relatives, womxn also experience the gender bias of home affairs clerks who are empowered by the Recognition of Customary Marriages Act to use their discretion to determine the validity of a customary marriage. Without clear guidelines on what this discretion entails, womxn report the almost automatic assumption by officials that they are being dishonest about the facts related to their marriage. Womxn approach the centre on a regular basis to report that they have trouble with home affairs officials who are unable to register their marriages in the absence of their spouses and two witnesses.
The WLC’s experience points to an ad-hoc application of regulations by home affairs officials where some offices will assist in the registration of a marriage post death of one of the spouses while other offices deny that such a process is available. The registration provision that allows for third parties to register a marriage is never discussed with womxn and our office has never experienced anyone being able to do so.
The WLC urges the government to consider the gender burden that womxn carry – and the entrenched patriarchy that the current system encourages – when considering any reforms in respect to the registration process of their personal relationships.
The state must make it easier for womxn to register marriages
The WLC supports a policy and legislative position which prioritises registration to ensure legal certainty in respect of the legal existence of a customary marriage. However, while the WLC supports the registration of marriage and the issuing of marriage certificates, we cannot support such a regime where womxn are disadvantaged and put in a position where they are required to negotiate the registration of marriage with their spouse to have their rights realised. Leaving the legal recognition and benefits that may flow from the relationship up to the whim of the male spouse, who because of patriarchy is already societally positioned to hold more power and authority over her is constitutionally deplorable.
The WLC agrees with the suggestion made by the South African Law Reform Commission, put forward in their draft bill(s), that the state allows for a customary marriage to be registered by one party attending home affairs and ensure the registration of the relationship. Such an amendment would also make provision for a third party to register a marriage and would allow officials in the employ of the home affairs department to investigate and establish whether there is in fact a valid marriage that was concluded for the purposes of the registration. We recommend that strict standard operating procedures be adopted and implemented to guide the discretion of home affairs clerks and provide clear frameworks on the investigation outcomes.
The WLC strongly believes that while registration of marriages is imperative in order to provide legal certainty and ensure womxn’s rights are protected, the prioritisation of registration can only be meaningful if womxn’s lived realities are considered so as to ensure access to such registration is feasible and not another obstacle that womxn must navigate.
The WLC welcomes the government’s acknowledgement that the current marriage regime, including the Recognition of Customary Marriages Act, is problematic and gives rise to prejudice and discrimination. However, as the centre has detailed in its written submissions on the green paper on marriages, it is imperative that new laws on marriage and its registration recognise non-conventional relationships, promote diversity in families and avoid disadvantaging womxn who may not easily be able to negotiate the registration of a marriage with a spouse.