Abstract
The South African legal system is a mixed, pluralistic one, and its family law resembles this potpourri of laws made up of state and non-state laws. State law includes the general law which is a mix of Roman-Dutch and English law, and customary law that include the laws of traditional communities. Certain non-state laws based on religion, especially in family law, have also been receiving protection from the judiciary despite not being officially recognised by the state. There are four types of marriages: common law marriages, civil unions, customary marriages and unrecognised religious marriages. They are regulated in terms of different legislation, common law rules, and judge-made rules which have led to differences and inequalities in many respects. Managing family justice in such a diverse setting has been a struggle, and the time has come for the South African government to reconsider its approach to the plurality of marriage laws, which does not always make a wonderful blend of potpourri.
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Notes
- 1.
Apartheid policies were already implemented in some areas (e.g. in the prisons) by the British, but it intensified when the National Party came into power in 1948 and lasted until 1994 when Nelson Mandela was elected president in the first democratic elections.
- 2.
For statistical figures, see http://www.statssa.gov.za/, accessed 20 April 2021.
- 3.
For an overview of the phenomenon of legal pluralism in South Africa, see Rautenbach (2018), chaps. 1–4.
- 4.
Church and Church (2008), p. 1.
- 5.
Rautenbach (2010b), p. 240.
- 6.
It is characterised as “Western law” because it shares a basic intellectual and jurisprudential tradition with other legal systems belonging to the Romano-Germanic and Common law families. See Rautenbach (2018), p. 5, note 2.
- 7.
This mix is the result of the transplantation of seventeenth Century Roman-Dutch law by the Vereenigde Landsche Geoktroijeerde Oostindische Compagnie (“Dutch East India Company” or “VOC”), who established a refreshment station in the Cape in 1652. It is trite that the Dutch ruled the Cape from 1652 to 1795 and then again from 1803 to 1806. The British ruled from 1795 to 1910, except for a brief interlude from 1803 to 1806. In 1910 the four former colonies were unified and formed the Union of South Africa. Although the Union had self-governing powers to a great extent, the British crown remained involved in the affairs of South Africa until it became wholly independent in 1961 with the formation of the Republic of South Africa. For more information on historical developments, see Muller et al. (1966), Zimmermann and Visser (1996), Chanock (2001). The British followed a policy of not replacing the law of the territories they colonised and Roman-Dutch law remained the law of the land, but over the years certain areas of law became anglicised nevertheless. The influence of English law in family matters has however been minor. This blend of Roman-Dutch law and English law remains a distinctive feature of contemporary South African law. More information can be found in a standard book dealing with the development of South African law, namely Hahlo and Kahn (1968).
- 8.
Constitution of the Republic of South Africa, 1996 (hereafter: the Constitution).
- 9.
Sects. 8(3)(a) and 39(2) Constitution.
- 10.
It applies only when certain conditions are met—namely: when it is compatible with the Constitution; when it has not been amended by legislation; and when it is applicable (choice of law). For an overview of the circumstances when customary law will be applicable, see Rautenbach (2018), pp. 42–48.
- 11.
One example is the muddling of the common law meaning of “spouse” and “descendant” in the case of customary law of succession. For a discussion of the issues, see Rautenbach and Meyer (2012), pp. 149–160.
- 12.
- 13.
See Draft Muslim Marriages Bill (X-2011). See discussion in Sect. “Religious Marriages”.
- 14.
On 27 April 1994 the Constitution of the Republic of South Africa Act 200 of 1993 (hereafter: the 1993 Constitution) commenced and with it the first democratic elections were held. The 1993 Constitution remained in operation for an interim period of 2 years before it was replaced by the current Constitution, which commenced on 4 February 1997.
- 15.
During the apartheid years, ten homelands were established in terms of the Promotion of Self-Government Act 46 of 1959. They were reintroduced into South Africa in 1991, and the country divided was divided into nine provinces. For a discussion of the position during the homeland era, see Butler et al. (1977).
- 16.
Transformation is a recurring theme in the Constitution. See the discussion by Klare (1998), pp. 146–188.
- 17.
Both Constitutions have a Bill of Rights. See Chapter 3 of the 1993 Constitution and Chapter 2 of the final Constitution.
- 18.
For an overview of the most important rights and freedoms in the area of religious diversity relevant to family law see du Plessis (2009), pp. 11–14.
- 19.
Sect. 211 Constitution.
- 20.
Sect. 9 Constitution.
- 21.
Sect. 15(3)(a) Constitution.
- 22.
Sect. 15 Constitution.
- 23.
Sect. 30 Constitution.
- 24.
Sect. 30 Constitution.
- 25.
Sect. 10 Constitution.
- 26.
It appears though that the government is reconsidering its stance in the area of family law. At the end of 2018, the Deputy Minister of Home Affairs requested the South African Law Reform Commission to commence with an investigation into the adoption of a single marriage statute for South Africa. See South African Law Reform Commission (2019), Issue Paper 35 on a Single Marriage Code: Project 144. The closing date for comments was 31 August 2019. The author has been appointed as a member of the advisory committee. The viewpoints in this contribution do not reflect the viewpoints of the Commission.
- 27.
The information contained in this section is based on a standard textbook on family law, namely Heaton and Kruger (2015).
- 28.
2006 (1) SA 524 (CC) para 64.
- 29.
Also see Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 30: “Entering into marriage therefore is to enter into a relationship that has public significance as well.”
- 30.
The statistics do not distinguish between civil union marriages and partnerships. See http://www.statssa.gov.za/?page_id=1856&PPN=P0307&SCH=7035, accessed 20 April 2021.
- 31.
In order to prevent any confusion arising from the terminology used to refer to marriages and unions in terms of the Civil Union Act, I will use the term “common law marriage” instead of “civil marriage”.
- 32.
This Act commenced on 1 January 1962.
- 33.
E.g. Seedat’s Executors v The Master (Natal) 1917 AD 302, p. 309.
- 34.
The argument that Calvinism played a central role in Boer (farmer) society has recently been challenged. As explained by Hexham and Poewe (1997), p. 123, there is evidence that the majority of the white farmers who moved to the north of the country lived in religious isolation and established societies similar to those of their African neighbours, even allowing practices such as polygyny.
- 35.
2006 (1) SA 524 (CC) para 24.
- 36.
2006 (1) SA 524 (CC).
- 37.
The Act commenced on 30 November 2006.
- 38.
See Sect. 13 Civil Union Act.
- 39.
2006 (1) SA 524 (CC).
- 40.
Heaton and Kruger (2015), p. 213.
- 41.
Sect. 6 Civil Union Act. For criticisms raised against this provision, see Smith and Robinson (2010), pp. 60–61.
- 42.
- 43.
- 44.
This Act commenced on 15 November 2000.
- 45.
For example, Sect. 1(2) of the Births and Deaths Registration Act 51 of 1992, which provided for the inclusion of a customary marriage in the definition of a “marriage” on condition that it was recognised by the relevant minister. This provision was repealed by the Births and Deaths Registration Amendment Act 18 of 2010.
- 46.
Sect. 2 Recognition of Customary Marriages Act.
- 47.
Sect. 3(1) Recognition of Customary Marriages Act.
- 48.
A few examples include: Matsoatso v Roro [2011] 2 All SA 324 (GSJ) paras 10-13; MM v MN 2013 (4) SA 415 (CC) para 39; Moropane v Southon [2014] JOL 32177 (SCA) para 37.
- 49.
The difference between living and official customary law is explained in Rautenbach (2018), pp. 30–33.
- 50.
2013 (4) SA 415 (CC).
- 51.
For a discussion of some of the issues, see Rautenbach (2017), p. 15.
- 52.
Sect. 4 Recognition of Customary Marriages Act.
- 53.
Sect. 7 Recognition of Customary Marriages Act.
- 54.
Sect. 7(6) Recognition of Customary Marriages Act.
- 55.
Sect. 3(2) Recognition of Customary Marriages Act.
- 56.
Sect. 10(4) Recognition of Customary Marriages Act and Sect. 8(2) Civil Union Act.
- 57.
Gumede (Born Shange) v President of the Republic of South Africa (4225/2006) [2008] ZAKZHC 41 (13 June 2008); Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC) para 16.
- 58.
Rautenbach and du Plessis (2012), p. 753.
- 59.
- 60.
2009 (3) SA 152 (CC).
- 61.
KwaZulu-Natal is the only province where customary law is codified in two pieces of legislation, namely the KwaZulu Act on Code of Zulu Law 16 of 1985 (hereafter: KwaZulu Act) and the Natal Code of Zulu Law Proc R151 of 1987 (hereafter: Natal Code).
- 62.
Sect. 20 of the KwaZulu Act and Sects. 20 and 22 of the Natal Code.
- 63.
Sect. 7(6) must be read in conjunction with Sect. 7(7), which is applicable to the existing matrimonial property systems and to the future property contract.
- 64.
2010 (4) SA 286 (GNP); 2012 (4) SA 527 (SCA); and 2013 (4) SA 415 (CC).
- 65.
MM v MN 2010 (4) SA 286 (GNP).
- 66.
MM v MN 2012 (4) SA 527 (SCA) para 38.
- 67.
MM v MN 2013 (4) SA 415 (CC) para 41.
- 68.
2018 (2) SA 1 (CC).
- 69.
For a discussion of some the practical problems of the customary matrimonial property system, see Bakker (2016a), p. 246.
- 70.
In the early 1900s, a decision of the Appellate Division (Seedat’s Executors v The Master (Natal) 1917 AD 302) confirmed that a Muslim marriage will not be recognised as valid in South Africa even if it was validly concluded abroad. The reason for this viewpoint was because Muslim marriages are potentially or de facto polygynous and thus regarded as contra bonos mores. This position was confirmed in the well-cited case of Ismail v Ismail 1983 (1) SA 1006 (A). For more examples, see Rautenbach (2004), pp. 121–152.
- 71.
For a discussion of some of these examples, see Rautenbach (2010a), pp. 152–172.
- 72.
1997 (1) BCLR 77 (C). The case was decided when the 1993 Constitution was still in force, but it remains relevant.
- 73.
1999 (4) SA 1319 (SCA). This case was also decided when the 1993 Constitution was still in operation.
- 74.
2004 (7) BCLR 735 (CC). A burning issue for many years was whether a Muslim widow can inherit in terms of the Intestate Succession Act 81 of 1987, and whether she has a claim for maintenance against the estate of a deceased husband in terms of the Maintenance of Surviving Spouses Act 27 of 1990.
- 75.
2009 (5) SA 572 (CC).
- 76.
2005 (2) SA 272 (T). The Court held that “partners in a Muslim marriage, married in accordance with Muslim rites (whether monogamous or not) are entitled to maintenance” in terms of the Maintenance Act 99 of 1998. In two other cases, AM v RM 2010 (2) SA 223 (ECP) and Hoosain v Dangor (Case 18141/09 (WCC)), the decision was that a Muslim wife is also entitled to maintenance pendente lite (interim maintenance) even though her marriage is not recognised.
- 77.
South African Law Reform Commission (2003), Project 106: Report on Islamic Marriages and Related Matters. The Report contained a Draft Bill which was severely criticised and eventually amended.
- 78.
Women’s Legal Centre Trust v President of the Republic of South Africa 2009 (6) SA 94 (CC).
- 79.
(4466/2013) [2013] ZAWCHC 159 (25 October 2013).
- 80.
2018 (6) SA 598 (WCC).
- 81.
2009 (3) SA 178 (D). Amien (2014), p. 33 discusses an unreported example, Prag v Prag (Wynberg Magistrate’s Court, Case Number 31008MAI000680 dated 2 November 2009), where the court extended the claim for maintenance in terms of the Maintenance Act 99 of 1998 to a Hindu wife who had left her husband.
- 82.
2004 (7) BCLR 735 (CC).
- 83.
2007 (3) SA 445 (D).
- 84.
See Amien (2014), p. 31.
- 85.
Smith and Robinson (2010), pp. 37–38.
- 86.
Bilchitz and Judge (2007), pp. 466–499.
- 87.
Sect. 13 Civil Union Act.
- 88.
Smith (2016).
- 89.
Heaton and Kruger (2015), pp. 255–256.
- 90.
It is possible to enter into universal partnership agreements. They are: societas universorum bonorum (sharing of all present and future assets and liabilities) and societas universorum quae ex quaestu veniunt (sharing of present and future assets and liabilities regarding commercial undertakings only).
- 91.
Partners may conclude contracts regarding their rights and responsibilities towards each other, such as the duty of support, the division of property on dissolution of the partnership, etc.
- 92.
A testator has the freedom of testation, and there is no way a partner can hold another one to his or her promise to make a will in favour of the other. This is regarded as an invalid pactum successorium.
- 93.
Butters v Mncora 2012 (4) SA 1 (SCA) para 11.
- 94.
Sect. 21(13) includes a heterosexual life partner in the definition of a spouse. Same-sex partners are not included in the wording of the provision. It refers only to “a woman living with a man as his wife or a man living with a woman as her husband”.
- 95.
Sect. 22(1) read in conjunction with the definition of “dependant of an employee” in Sect. 1 allows for a heterosexual person who was a life partner of an employee to claim compensation in the case where the latter was killed in an accident in the course of his or her employment. This provision also refers only to “a person with whom the employee was at the time of the employee’s death living as husband and wife”.
- 96.
Sect. 4(q) read in conjunction with the definition of spouse in Sect. 1, which includes a person who was at the time of the death of the deceased involved with another person “in a same-sex or heterosexual union which the Commissioner is satisfied is intended to be permanent” exempts from estate duty property accruing to a heterosexual or same-sex life partner from his or her deceased partner’s estate.
- 97.
Sect. 1 provides protection to partners involved in domestic violence by including life partners in its definition of a “domestic relationship”.
- 98.
See Smith (2016) for a more detailed discussion of these inequalities.
- 99.
2005 (5) BCLR 446 (CC).
- 100.
Volks v Robinson 2005 (5) BCLR 446 (CC) paras 55-60.
- 101.
See Heaton and Kruger (2015), pp. 263–266 for a discussion of some of these cases.
- 102.
1998 (3) SA 312 (T).
- 103.
2000 (2) SA 1 (CC).
- 104.
2002 (6) SA 1 (CC). In this case the spousal benefits referred to those afforded to a surviving spouse of a deceased judge in terms of the Judges’ Remuneration and Conditions of Employment Act 88 of 1989.
- 105.
2004 (1) SA 359 (SCA).
- 106.
2003 (2) SA 198 (CC).
- 107.
2007 (4) SA 97 (CC).
- 108.
The relevant provision is Sect. 1(1).
- 109.
2017 (2) SA 264 (CC).
- 110.
See Smith (2016).
- 111.
The Act has 315 provisions dealing with a variety of issues in the area of parental responsibilities and rights, guardianship, the maintenance of children, children’s courts, partial care, the protection of children, the care of children, adoption (including inter-country adoption), child abduction, surrogacy, and international child law.
- 112.
Sect. 8 Children’s Act.
- 113.
Sect. 1 Children’s Act at the definition of “child”.
- 114.
Sect. 9 Children’s Act.
- 115.
Sects. 18-41 read in conjunction with Sect. 1 Children’s Act.
- 116.
Sect. 18(2) Children’s Act.
- 117.
Sect. 1 Children’s Act at the definition of “marriage”.
- 118.
Sect. 231(1)(a)(ii) Children’s Act.
- 119.
The word “partner” is also mentioned in the case of surrogacy, but there is no indication of whether it is a partner in terms of the Civil Union Act or a life partner. See Sect. 292(1)(d) for an example.
- 120.
See Heaton and Kruger (2015), pp. 329–349, for a detailed discussion.
- 121.
One other way, which is seldom used, is a court order declaring a marriage as dissolved, where a presumption of death is declared in terms of the Dissolution of Marriages on Presumption of Death Act 23 of 1979.
- 122.
There is no need to obtain a court order for a void marriage because it would not change the status of the parties. It is customary, though, for the parties to obtain one for legal certainty. An exception is a putative marriage, which is strictly speaking void but has some of the consequences of a valid marriage. A court cannot declare the marriage valid or invalid; it declares only that the marriage is a putative one with certain consequences. A voidable marriage remains in force and has the normal consequences of a marriage until set aside by a court order. The grounds for setting aside a voidable marriage are discussed in Heaton and Kruger (2015), pp. 34–37. They include: the marriage of a minor who failed to obtain the permission of his or her parents; a mistake about the identity of either of the parties; a marriage entered into under duress; and the impotency of one of the spouses, which condition already existed before the marriage.
- 123.
The dissolution of a Muslim marriage by means of a divorce and the awarding of post-divorce maintenance to a Muslim wife have always been contentious issues in South African law. See Gabru (2004), pp. 43–56.
- 124.
2007 (3) SA 445 (D).
- 125.
At para 47.
- 126.
[2009] JOL 23733 (ECP).
- 127.
Rule 43 of the Uniform Rules of Court allows for maintenance pendente lite—whilst the divorce proceedings are incomplete. The husband argued that the wife was not entitled to this maintenance because their marriage had not been a valid one and she would not be entitled to obtain a divorce in terms of the Divorce Act.
- 128.
Also see the discussion by Denson and Carnelley (2009), pp. 679–701.
- 129.
For a detailed discussion of the legal position pertaining to life partnerships, see Smith (2014), pp. 389–474.
- 130.
South African Law Reform Commission (2006), Project 118: Report on Domestic Partnerships, p. 110.
- 131.
Smith (2014), p. 394.
- 132.
Sect. 3 read with Sects. 4–5 Divorce Act. For a detailed discussion of the grounds for divorce, see Robinson (2014), pp. 7–32.
- 133.
Heaton and Kruger (2015), p. 124.
- 134.
1993 (3) SA 604 (W).
- 135.
Sect. 8(2) of the Recognition of Customary Marriages Act lays down that a court may grant a decree of divorce only if “it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of restoration of a normal marriage relationship between them”.
- 136.
For a detailed discussion, see Himonga (2014), pp. 231–278.
- 137.
Himonga (2014), pp. 238–240.
- 138.
As in Sects. 7, 8, 9 and 10.
- 139.
As in Sect. 24(1).
- 140.
Herbst and du Plessis (2008), p. 14.
- 141.
See the research done by Mafhala (2016), pp. 118–126.
- 142.
See Rautenbach and Matthee (2010), pp. 118–126.
- 143.
South African Law Reform Commission (2015), Revised Discussion Paper 138 on Project 138: The Practice of Ukuthwala, p. 55.
- 144.
Sect. 1 Domestic Violence Act at the definition of “domestic violence”. Economic abuse is also recognised as a form of violence in terms of the Act.
- 145.
For more information, see Boezaart (2009), pp. 600–634.
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Rautenbach, C. (2022). South Africa’s Family Laws: A Potpourri of Some Sort?. In: Yassari, N., Foblets, MC. (eds) Normativity and Diversity in Family Law. Ius Comparatum - Global Studies in Comparative Law, vol 57. Springer, Cham. https://doi.org/10.1007/978-3-030-83106-6_7
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