Our country is one of the most unique places in the world: it’s a melting pot of cultures and traditions, and a beacon of diversity to the rest of the globe. Of course, South Africa is particularly inspirational and ground-breaking in that it strives to provide equal rights for all citizens and has a Constitution that kicks discrimination to the curb! It’s a testament to the laws in our country evolving with the times… but it doesn’t stop there! A healthy democracy that is built on equality must be open to continuously adapting and ironing out any creases of inequality. And that includes protecting some of the most vulnerable members of South Africa – women. 2019 saw a giant leap towards recognising women’s rights as enshrined in the Bill of Rights, with the passing of amendments to the Recognition of Customary Marriages Act (RCMA). This is why LAW FOR ALL is shining a spotlight on customary divorces in South Africa and what women need to know about their rights and overcoming any barriers to justice.
A look back: the evolution of the Recognition of Customary Marriages Act in South Africa
The Act is a prime example of how the customs and traditions of the various cultures in our country are not only legally recognised, but also protected. It shows how legislation can continuously develop to ensure equality and dignity for all. Here’s a brief timeline, for context:
Pre-1998: Before these regulations of customary marriage came into existence, women had little to no rights in the matter. In fact, women in customary marriages were deemed “minors” and under the marital power of her husband.
1998: The Recognition of Customary Marriages Act was drawn up with the intention of providing equal status and capacity for spouses. The Act commenced in 2000.
2009: A section of the Act that states that a customary marriage entered into “after the 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” is challenged in the Constitutional Court. As a result, the words “after the commencement of this Act’, are ruled unconstitutional as it didn’t give spouses who entered customary marriages before the new law came into existence, the same rights. However, this was only applicable to those in monogamous customary marriages.
2018: Spouses in polygamous customary marriages only got equal rights after the landmark Ramuhovhi and Others v President of The Republic of South Africa and Others case. Essentially, the outcome determined that “wives and husbands [of polygamous customary marriages] will have joint and equal ownership and other rights to, and joint and equal rights of management and control over, marital property…”
2019: Amendments to the Recognition of Customary Marriages Act are officially signed into law, giving women in monogamous or polygamous customary marriages in South Africa equal propriety rights over marital property. What’s more, children can now also inherit from their mother.
Customary divorces in South Africa: what women need to know
According to the law, a customary marriage may only be dissolved by a decree of divorce from a court of law. The court may grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the relationship has reached such a state of disintegration that there is no reasonable prospect of the restoring of a normal marriage relationship.
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. “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. “ This, of course, creates a barrier to justice, and many women don’t seek legal recourse, which can severely impact their futures.”
Let’s take a closer look at some of the other issues women face when getting a customary divorce:
1. Separating instead of getting a legal divorce
It’s important for women to know that they will only have access to the fair division of assets and other material resources if the customary marriage is dissolved in a court of law. An informal separation is not the way forward, so be sure to make it a legal procedure to ensure legal rights are protected. There have also been cases where a husband, after a separation from an unregistered customary marriage, entered into a civil union giving his new spouse the legal leg up. (Note: even though is required and highly recommended, a customary marriage does not have to be registered for a spouse to have equal rights.)
2. Not knowing they’re entitled to an equal share
The default regime of a customary marriage is in community of property, which means that, upon divorce, the former spouses are entitled to an equal division of the joint estate. However, even in some cases where a customary divorce is being heard in court, women often don’t know what they can seek an equal share and have already signed divorce papers.
3. Women are seen as “deserting” the marriage if they want a divorce
In some instances, the blame for the “divorce” is chalked up to a woman who simply wants to leave and “desert” the marriage and family. Because of this, there is sometimes a belief that she is only entitled to her personal belongings. This is obviously not a legal divorce and will compromise a woman’s rights.
4. Some legal practitioners and courts aren’t clued-up on the law of customary customary marriages
Often, those in the justice system do not keep up to date with changes to the law, and so even if the divorce is taken to court, the RCMA isn’t taken into proper consideration. This means that courts do not sufficiently consider the circumstances that are relevant to how the matrimonial property will be shared. Ultimately, the equal division of a joint estate isn’t always guaranteed.
What should women do if they want to obtain a customary divorce?
“I think the only real way in which women should or would be protected is in arming them with the knowledge that they do have rights,” adds Matshoza. Knowledge, as they say, is power, and it is important for women not to feel powerless in these situations. It’s also then crucial to seek a lawyer who is up to date on South African customary divorce law so that they can accurately and fairly represent you in the divorce.”
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