South Africa 
New Customary Marriages Act sees women as equal partners

Gillwald said that the Customary Marriages Act, no 120 of 1998 repeals the "infamous section 11 (3) of the Black Administration Act of 1927 which condemned African women to a legal state of 'perpetual minority'." 

She added that several remaining laws at a national and provincial level have also been repealed including the KwaZulu Act on the code of Zulu Law of 1985 that entrenched the notion - in the province - that a man in a marriage is not only the head of the family, he is also the holder of the marital power.

Gillwald stated that as the new Act "engenders a new respect for the African legal tradition and also elevates the status of women and children by improving their position . . . it will also provide for certainty by identifying the rights and duties of spouses in contracting a marital union in accordance with customary laws".

The main objective of the Act is to extend full legal recognition to marriages entered into in accordance with customary law or traditional rites by bringing women and children into the protective realm of the constitution.

Gillwald said that the Act will give recognition to existing customary marriages whether they are monogamous or polygamous. She added that polygamy was not banned because "the ban would be almost impossible to enforce and that the popularity of the practice seems to be waning".

However Gillwald added that the Act will only give an extended recognition to customary marriages that were valid in customary law at the date of the commencement (Wednesday). This means that customary marriages that already exist can be registered within the 12 months and those who are planning on entering into a customary marriage should register within three months of the celebration (dowry celebrations).

She also said that those in customary marriages that already exist can amend the property system in their marriages under supervision of the court ". . . as long as they make a joint application".

Professor Thandabantu Nhlapo who served as the SA Law Commissioner until a month ago, said that the Act does not compel couples to register but they are advised to, as it will help protect women and children in the court of law in regards to legal heir rights and it will "make the marriages easier to prove".

Under the previous laws children born in customary marriages were considered illegitimate. According to the Act "a wife in a customary marriage has - on the basis of equality with her husband and subject to the matrimonial property system governing the marriage - full status and capacity, including the capacity to acquire assets and to dispose of them, to enter contracts and to litigate in addition to any rights and powers that she might have at customary law." 

Gillwald explained that "a customary marriage entered into after the date of commencement of this Act, in which a spouse is not a partner in any other existing customary marriage is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an ante-nuptial contract that regulates the matrimonial property system of their marriage". 

- A husband in a customary marriage who wishes to enter into a further customary marriage with other women after the commencement of this Act must make an application to the court to approve a written contract that will regulate the future matrimonial property system of his marriage, Gillwald announced.

Although Nhlapo said that "there will always be a gap between customary laws and common laws" he was optimistic about the changes that this Act will bring about in African cultures.

by Boshadi Nkomo (WOZA)

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