Form over function? the practical application of the recognition of Customary Marriages Act 1998 in South Africa
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Date
2013
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Juta Law
Abstract
The Recognition of Customary Marriages Act 120 of 1998 is a major legislative measure for the development of customary marriages in line with the constitutional principle of equality, specifically for women. The article explores the interactions between this ideal in the Act with empirical observations and the latest judicial decisions concerning its application. It considers various examples of the lack of protection of women in relationships of a customary nature, and it concludes that both the state and courts favour a formal or definitional approach to customary marriage. In considering alternative approaches that could adequately protect vulnerable parties, two conclusions emerge: First, the article recommends a wholesale revision of the South African family law approach from a focus on form to dependency. Second (and as a short-term measure), the article advocates for the putative marriage doctrine to be applied in the customary marriage context to protect many women who are denied access to 'customary marriage' as a form, and as a result, all of the benefits that flow from such marriage.
Description
Keywords
Customary Marriages Act 1998, Putative marriage doctrine, Family law, Women's rights
Citation
Mwambene, L. and Kruuse, H. (2013). Form over function? the practical application of the recognition of Customary Marriages Act 1998 in South Africa. Acta Juridica: 292-317