Page 10 - SAReform Book

8 Reform of Customary Marriage, Divorce and Succession in SA 1.2 The background and features of the new laws
Until apartheid was dismantled in 1994, the South African legal system was characterised by dualism in the laws governing the institution of marriage and the administration and devolution of estates. This legal system was fashioned to discriminate between black South Africans and other racial groups in these areas of law. Generally, official customary law, most of which comprised an oppressive form of customary law developed by the colonial and apartheid states as the backbone of segregation policies, applied to black people, while common law applied to other racial groups.
Moreover, the customary law of marriage was regarded as inferior to common law, as state law hardly recognised customary unions, unlike mar- riages entered into in accordance with the Marriage Act 25 of 1961, which were fully recognised. A similar situation prevailed in the field of succession where customary law generally applied, save for the limited application of the common law to the estates of black people in terms of relevant conflict-of-law rules. This differentiation also applied to the administration of estates: the estates of black people were administered by magistrates’ courts while the estates of members of other racial groups were administered by the Master of the High Court.
The new constitutional dispensation was irreconcilable with all forms of discrimination in the legal system. The inclusion of the Bill of Rights in the interim Constitution (Act 200 of 1993) and the final Constitution of 1996 brought racial and gender discrimination in law under severe scrutiny. Section 9(1) of the final Constitution states that ‘Everyone is equal before the law and has the right to equal protection and benefit of the law’, while s 9(3) declares that the state may not unfairly discriminate directly or indirectly against anyone on several grounds, including race, gender, sex, age and status. The Bill of Rights also guarantees a number of rights for children, and includes the principle that the best interests of the child are the paramount consideration in all matters concerning the child. South Africa has also ratified international treaties that prohibit gender discrimination and the marriage of children. With these national and international regimes of rights, an era of legal reform began in the fields of customary marriage and succession. Parliament enacted the Recognition of Customary Marriages Act (RCMA) in 1998. This Act eradi- cated the principles under the Black Administration Act2 and other forms of official customary law3 pertaining to the legal status of customary marriages. The RCMA also improved women’s access to the financial resources of a marriage, and provided for adjudication of matrimonial disputes by superior courts and regional courts only.
Specifically, the RCMA addresses the following aspects: the requirements for a valid marriage; the registration of marriages; polygynous marriages; the equal status of spouses; the proprietary consequences of marriage and
2 Act 38 of 1927 (now substantially repealed).
3 Such as, for example, the legal principles of customary marriages that are contained in precedents and the Natal Code of Zulu Law Proc R151 of 1987.