Page 12 - SAReform Book

10 Reform of Customary Marriage, Divorce and Succession in SA
This report details how these new laws are being implemented, indicating the areas of both compliance and non-compliance. In this way, the report reveals the extent to which the state protects the lives of people living according to customary law, and considers how well the principles in the Constitution are being upheld. Our findings indicate that for various reasons these laws are not being implemented consistently or effectively. The reasons are discussed in the following sections. We also make recommendations for improving the implementation of the laws.
1.3 The argument of the report
The main argument of this report is that the state is responsible not only for ensuring principles of gender equality in the areas of marriage, divorce and succession, but, most importantly, it is responsible for supporting people’s access to material resources. As Mnisi Weeks has observed, while it may have been appropriate for earlier advocacy to demand legal rights, the continuation of the same demand is now overlooking other significant issues.4 The rhetoric of rights and the provision of rights do not guarantee that vulnerable spouses and family members who want to access a share in marital property, for example, can do so. Furthermore, the law may provide rights, but if the state does not assist individuals in claiming the right, it is an empty right. The acquisition of legal rights may over-simplify complex power relations and may create the impression that the state has done enough to overcome power differences. The fact that women now have the right to institute divorce proceedings and claim matrimonial property has not stopped the informal regulation and dissolution of customary marriages. This is not always because dependent spouses are unaware of their rights,5 although this may be true in some cases; rather, it is because the law and the institutions that administer it treat the women and men involved as opponents, without considering the wider economic and social context in which the relationship exists. The regulation of customary law matters should therefore become more respon- sive to the ‘real’ situation of people’s lives. We argue that the recommenda- tions we make in this report are necessary to improve people’s access to resources and to more secure livelihoods, not only to improve their access to legal or equality rights.
2. Overarching findings
The major overarching findings and recommendations about the implementa- tion of the new laws will be discussed in this section. Thereafter we discuss in more detail the compliance with and dissonance from the new laws for the various topics investigated, and we offer recommendations to deal with the challenges identified.
4 Mnisi Weeks ‘ ‘‘Take your rights then and sleep outside, on the street’’: Rights, fora, and the significance of rural South African women’s choices’ (2012) 29 Wisconsin International Law Journal 288.
5 Mnisi Weeks (n 4) 290.