The recognition of Customary Marriages Act: many women still left out in the cold

Abstract

This paper focuses on the position of women in monogamous customary marriages concluded before the commencement of The Recognition of Customary Marriages Act, 120 of 1998. This Act alleviated (on appearances) the subordination and inferior status of women in cutomary law. Sec 6 specifically stipulates that a wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial system governing the marriage, full status and capacity. According to sec 7 the proprietary consequences of marriages entered into before the commencement of the Act continue to be governed by customary law. However, the question arises – what is the point of sec 6 granting a wife equality with her husband and the capacity to acquire assets, but still subject to the customary law which places the marital property under the control and almost complete discretion of her husband? Many of the sections of the Divorce Act and the Matrimonial Property Act (which was introduced mainly to improve the postion of women) are also only applicable to customary marriages entered into after the commencement of the Act. It is submitted that arguments which supported a retrospective change to proprietary regimes, should have been adopted in the legislation. Sec 7(1) of th Act should be amended to provide that a monogamous customary marriage entered into before the commencement of the Act, is a marriage in community of property and of profit and loss.