Note: This article was first published in GroundUp: http://www.groundup.org.za/article/customary-marriage-law-working/ 

Under apartheid, most married women in South Africa were regarded in law as minors, under the guardianship of their male relatives or their husbands. New laws since 1994 set out to change that. But are the new laws working? Prof. Chuma Himonga, the National Research Foundation Chair in Customary Law and Elena Moore of the University of Cape Town conducted a study to find out.

Before 1994, the law hardly recognised customary marriages, as opposed to marriages entered into in accordance with the Marriage Act 25 of 1961.

Black married women were regarded as perpetual minors; they could not acquire or own property in their own right and in some parts of the the country customary husbands had absolute ownership of household property and personal property (including earnings) of their wives.

In the post-apartheid era, the Recognition of Customary Marriage Act (RCMA) improved women’s access to economic resources from a marriage. The new laws introduced principles of gender equality and non-discrimination, and the protection of the rights of children in the family. All children, including female children and children born outside the marriage now have an equal right to inherit.

So how are these new laws working? We conducted a national study, in association with the National Movement of Rural Women, to examine how the new laws operate in practice. We found that structural and cultural barriers make the new laws very difficult to implement.

One participant, Sisanda (not her real name) summarised some of the problems:

"Sometimes even though you are married to your husband, in some families, maybe when your husband dies it’s hard to fight for your rights, because they say if your marriage is not registered, your in-laws disregard your rights. Yes, there is a difference because [with] the marriage of the Recognition of the Customary Marriages Act, you have rights when problems arise, and your in-laws cannot deny you your rights, and they cannot interfere. You can even go to report at Home Affairs as they have registered your marriage and you would be able to resolve the issue…. What raises up suspicions in a traditional marriage, is that you would be sitting there with your Xhosa traditional bride attire, considering yourself as married but you do not have a ring, and your name is not registered at Home Affairs. Your partner could marry someone else at Home Affairs and now when you want to claim your rights it’s hard to do that because your marriage was not registered and there is someone else on record. My advice is to get married and register the marriage."

As Sisanda’s use of images and concepts such as  ‘traditional marriage’, ‘Xhosa traditional bridal attire’, ‘ring’, ‘in-laws’, ‘Home Affairs’, and ‘rights’ shows, there is a complex link between customary and civil marriages.

A customary marriage and a civil marriage are both types of legal marriages. Either can be registered at Home Affairs. A civil marriage is a marriage contracted between two parties under the Marriage Act. A customary marriage is legally defined as a marriage in accordance with customary law, that is, the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples. People can register their marriage according to customary law or civil law but not both.

Our study revealed a great deal of confusion among married couples about the differences between customary marriages and civil marriages and about the registration process and the legal regulation of both marriages.

Despite the introduction of the Recognition of Customary Marriage Act, civil marriages are thought to provide better legal protection. This is not the case.

Moreover, registering a marriage with the Department of Home Affairs was strongly associated with civil marriages. This should not be the case. Almost all the people in our study thought they had registered their marriage as a customary marriage, but in fact, this was not the case as they all married under the Marriage Act. They were unaware of the marital system they had married under and they were therefore unaware of the rights and responsibilities of  being married according to a specific legal system. The findings also show that officers registering marriages did not distinguish between registering a customary marriage and registering a civil marriage.

The findings make a case for questioning whether officials at the Department of Home Affairs are prioritising the registration of civil marriages at the expense of customary marriage registrations.

There is much discussion about the requirements for a valid marriage, but our findings show that the practices of the courts and the practices of the people require the payment of lobolo and the integration of the wife into the husband’s family for the conclusion of a valid marriage. In some cases part or full payment of lobolo is a prerequisite for concluding a valid marriage, while in others the agreement to pay is sufficient.

Take the following example from our findings: Frank married Asanda in 1978; Asanda changed her surname, lived with her husband and his family and participated in family life. Frank passed away in 2002 and Asanda sought to obtain the spousal benefit from her husband’s pension and continued to live in the marital home. Frank’s family said that she was never married as Frank had died before he finished paying lobolo. Asanda could not prove she was married to Frank as the couple had not registered the marriage.

It has been suggested that people dispute the validity of a marriage as a way of escaping the financial obligations to spouses at the end of marriage. When this happens, the dispute hinges on the terms under which lobolo was negotiated. One side will argue that full payment was required, while the other side will argue that the families regarded the wife as a spouse. In most of these cases there is no proof that a valid marriage exists, as the couple did not register their marriage. Providing evidence of a valid marriage is then very difficult, especially when elders have passed away.

The transfer of lobolo and the registration of a marriage are intricately linked in the eyes of the participants. However for the purposes of the requirements for a valid marriage, the marriage should come into existence when the lobolo agreement is concluded, not when it is actually paid, especially because the parties behave as married after the agreement. This also ensures that the woman acquires a legally protected status earlier rather than later.

These matters affect the everyday lives of many South Africans and their access to resources necessary to sustain livelihoods. People in customary marriages represent some of the most marginalised and vulnerable people in our society. While almost one in every two men and women in a civil marriage is employed, only two in every five men and women in a customary marriage are employed. Only one-quarter of women in customary marriages are employed, compared to 37.5% of women in civil marriages.

Among black South Africans there are almost five times as many widows as widowers and there are almost twice as many separated or divorced women as men.

The findings of our study highlight the uneven consequences of divorce and intestate succession for many black South African women as wives, daughters or sisters. Women in customary marriages are found to be the most vulnerable. Failure to register a customary marriage has race and gender consequences which cannot be overlooked.

Himonga is the NRF Chair in Customary Law and  Moore is in the Department of Sociology at UCT. This is the first in a series of three articles. The next will look at what happens when a marriage ends.

Views expressed are not necessarily GroundUp's.