The position of women in traditional/customary marriages was previously equal to that of minors. This was due to the fact that Customary law systems are patriarchal in nature, meaning they elevate the status of men above and to the detriment of women. For example, the doctrine of male premogeniture in customary inheritance discriminated against women in that daughters could not be beneficiaries in the late estate of their deceased father. In the cases of Bhe and Shibi, this doctrine was declared unconstitutional together with the legislation that recognised it i.e Section 23 of the Black Administration Act, in that it discriminated against beneficiaries on gender and racial grounds which is inconsistent with Section 9 of the Constitution.
With regards to matrimonial matters the legal status of women in customary marriages could be equated to that of a minor. A woman’s capacity too was limited in that a woman in a customary marriage required the consent of her husband to contract and to own or sell property.
All this has changed according to the law in South Africa. The Recognition of Customary Marriages Act 120 of 1998 (RCMA) came into effect on 15 November 2000. The RCMA was mainly passed to;
Make provision for the recognition, requirements and registration of customary marriages
Valid customary marriages entered into before the RCMA came into force, are recognised as marriages for all legal considerations. Customary marriages concluded after the commencement of the RCMA must comply with certain requirements in order to be valid i.e spouses must be 18 years or older (if younger the Minister or designate must consent in writing), consent of both parties, neither party must be already married under Marriage Act or Civil Union Act. The marriage must also be registered with Dept of Home Affairs within 3 months, although non-registration does not affect validity of the marriage. Legal Hero however encourages spouses to register, as this eliminates potential problems with regards to maintenance and succession.
To provide for the equal status and capacity of spouses in customary marriages
As noted above, previously under customary law there had been prohibitions limiting a wife’s rights to own or sell property, as well as enter into contracts. Further the wife was under the marital power of her husband, which effectively equated her status to that of a minor. The RCMA however, provides for the equal status and capacity of spouses in customary marriages which is a great shift consistent with the equality and freedom clauses of the Constitution and International Human Rights commitments.
To regulate the proprietary consequences in customary marriages
According to RCMA all valid customary monogamous marriages concluded after the act came into force are in community of property, unless the parties opt otherwise. In polygamous marriages (more than one wife) the proprietary and/or financial consequences are determined by contract which is subject to approval by the Court. For those concluded before commencement, the Constitutional Court in the case of Gumede ruled that they are infact, to be treated as concluded in community of property, provided that they are monogamous (one wife). This means the assets and liabilities are jointly shared equally between the parties.
Despite its shortcomings in terms of certainty and inconsistencies in some of its provisions, the RCMA has gone a long way in addressing inequalities regarding the positions of spouses in customary marriages. Still, more needs to be done in publicising this new position in the law especially in rural areas where information penetration remains a challenge regardless of the fact that this is usually where customary traditions and marriages are commonplace.