The question of custom in the onus to prove customary marriage

abstract

Prior to the Constitution of the Republic of South Africa, 1996, customary laws often deprived women in customary marriages of patrimonial benefits upon divorce and spousal death. Such consequences usually affected the most vulnerable parties, that is, women and children. Therefore, a need arose for the enactment of legislation, aimed at alleviating such hardships, encountered by women in customary marriages. The Recognition of Customary Marriages Act 120 of 1998 endeavoured, amongst other things, to alleviate the discriminatory and unequal treatment suffered by parties to customary marriages. Women had grounds for celebration when the Recognition of Customary Marriages Act was finally enacted. However as will be shown in this profile, little did they know of the hardship they would still encounter in customary marriages. In claiming patrimonial benefits, the law requires that the validity of a marriage be proved. This onus of proof has mostly affected women and compromises their right to equality in marriage and requires reform.

keywords:

• custom
• validity of customary marriage
• patrimonial benefits
• maintenance claim
• surviving spouse

Additional information

Notes on contributors

Keneilwe Radebe

KENEILWE RADEBE is an attorney of the High Court of South Africa and currently a lecturer at the Department of Public Law, University of Pretoria. She obtained a master’s degree in Constitutional and Administrative Law at the University of Pretoria (2014) and her research fields are; human rights, constitutional law and media law. The author worked as a legal researcher and a candidate attorney prior to working for the University of Pretoria.