Protecting marital rights and property regimes of women under customary marriages in South Africa

Abstract

During the colonial and apartheid era, indigenous people of South Africa, predominantly the black majority conducted their marriages  under their customary and traditional laws. Patriarchy was institutionalised to the extent that women did not have any say in the  marriage and the relationship. Women were subjected to discrimination and exclusion. The good news is that post-apartheid South Africa  is a constitutional democracy where the Constitution is supreme and regulates all activities. There is a Bill of Rights in the  Constitution which provides for equal rights and dignity hence women now enjoy equal rights with men under the Constitution. In order  to align the cultural and traditional marriages with the Bill of Rights, the legislature enacted Recognition of Customary Marriages Act 120  of 1998 (RCMA) which seeks to remove all discriminations against women and afforded them ample protection to equally benefit from  the property regimes. Essentially, the RCMA was passed with the intention of putting customary marriages at par with the civil marriages.  This protection extends to sharing of properties acquired during the marriage at the time of divorce. The concern is that  many people, particularly, women who married under the customary marriages, are not aware of the new marital property regimes  created by the RCMA. It is against the backdrop of this gap that this paper exposes all the benefits and entitlements available to women  under the RCMA. Methodologically, this paper utilised literature review approach by sourcing salient scholarly works including case law  and statutes in the discipline, reviewed them by gleaning germane information to fill the gap. The findings showed that through judicial  interventions and pronouncements, women rights are being protected post- 1994 South Africa.