Form over function? The practical application of the Recognition of Customary Marriages Act 1998 in South Africa
- Authors: Kruuse, Helen
- Date: 2013
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54094 , vital:26389 , http://journals.co.za/content/ju_jur/2013/1/EJC148455
- Description: The Recognition of Customary Marriages Act 120 of 1998 is a major legislative measure for the development of customary marriages in line with the constitutional principle of equality, specifically for women. The article explores the interactions between this ideal in the Act with empirical observations and the latest judicial decisions concerning its application. It considers various examples of the lack of protection of women in relationships of a customary nature, and it concludes that both the state and courts favour a formal or definitional approach to customary marriage. In considering alternative approaches that could adequately protect vulnerable parties, two conclusions emerge: First, the article recommends a wholesale revision of the South African family law approach from a focus on form to dependency. Second (and as a short-term measure), the article advocates for the putative marriage doctrine to be applied in the customary marriage context to protect many women who are denied access to 'customary marriage' as a form, and as a result, all of the benefits that flow from such marriage.
- Full Text:
- Date Issued: 2013
- Authors: Kruuse, Helen
- Date: 2013
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54094 , vital:26389 , http://journals.co.za/content/ju_jur/2013/1/EJC148455
- Description: The Recognition of Customary Marriages Act 120 of 1998 is a major legislative measure for the development of customary marriages in line with the constitutional principle of equality, specifically for women. The article explores the interactions between this ideal in the Act with empirical observations and the latest judicial decisions concerning its application. It considers various examples of the lack of protection of women in relationships of a customary nature, and it concludes that both the state and courts favour a formal or definitional approach to customary marriage. In considering alternative approaches that could adequately protect vulnerable parties, two conclusions emerge: First, the article recommends a wholesale revision of the South African family law approach from a focus on form to dependency. Second (and as a short-term measure), the article advocates for the putative marriage doctrine to be applied in the customary marriage context to protect many women who are denied access to 'customary marriage' as a form, and as a result, all of the benefits that flow from such marriage.
- Full Text:
- Date Issued: 2013
You reap what you sow : regulating marriages and intimate partnerships in a diverse post-apartheid society
- Authors: Kruuse, Helen
- Date: 2013
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54152 , vital:26396 , https://tinyurl.com/yaughtn2
- Description: South Africa does not have a particularly proud history. Marred by the politics of separate but (un)equal treatment of its people, the country's past political system has had a damaging effect in all spheres, but specifically on that of the family. In the context of relationships, it is fair to say that the apartheid system was replicated in family law, with the Western 'white' monogamous marriage receiving the state's stamp of approval - leaving other relationships (customary, Muslim, homosexual, cohabiting etc) largely out in the cold.
- Full Text:
- Date Issued: 2013
- Authors: Kruuse, Helen
- Date: 2013
- Language: English
- Type: Article , text
- Identifier: http://hdl.handle.net/10962/54152 , vital:26396 , https://tinyurl.com/yaughtn2
- Description: South Africa does not have a particularly proud history. Marred by the politics of separate but (un)equal treatment of its people, the country's past political system has had a damaging effect in all spheres, but specifically on that of the family. In the context of relationships, it is fair to say that the apartheid system was replicated in family law, with the Western 'white' monogamous marriage receiving the state's stamp of approval - leaving other relationships (customary, Muslim, homosexual, cohabiting etc) largely out in the cold.
- Full Text:
- Date Issued: 2013
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