Page 23 - SAReform Book

Summary Research Report 21 or the prospective wife) to initiate the contract and to apply to the court for its
conclusion.
3.4 Equality in marriage
The protection of the constitutional principle of gender equality in marital relationships is a key objective of the RCMA. Three key findings regarding gender equality in marriage are worthy of note. First, married individuals do not sign an antenuptial contract, with the result that nearly all marriages under customary law are now concluded in community of property and of profit and loss by default. However, the parties do not have detailed discussions about their matrimonial property regimes.
This scenario is attributable to the prospective couples’ lack of awareness of the different marital property regimes available when entering into a marriage, and the absence of appropriate support services to assist them in this regard. In some cases, spouses who register their marriages receive informa- tion about proprietary regimes from DHA officials, but this information is not sufficient for them to make informed decisions about their choice of property regimes or to take appropriate steps to claim their rights when necessary. These challenges potentially disadvantage many women if they divorce or when a partner dies, and thus weaken the constitutional protections intended to benefit women with regard to their property rights.
Secondly, while both legislation and court decisions have sought to secure gender equality in marriage, personal status and the proprietary consequences of marriage, in practice, this ideal is still a remote prospect.
Thirdly, perceptions on gender equality are mixed. While some participants support gender equality, others do not. The latter view particularly reflects the durability of views that deny wives any control or role in decision-making, thereby allowing husbands to maintain exclusive power in the regulation of family affairs.
These findings, particularly the first and second, underscore the need for mechanisms to make the public more aware of the nature of the customary law marriage regime introduced by the RCMA, in order to enable individuals to claim their gender rights guaranteed by the Constitution. There is also a need to provide support services to assist people wanting to enter into custom- ary marriages to make informed decisions about the type of matrimonial property regime they should enter into. It is no use for the government to create highly technical and complex systems of marriage with regard, espe- cially, to matrimonial property, and to expect that poor people, with hardly any formal education, can navigate these legal regimes to their benefit.
3.5 The dissolution of a customary marriage
The dissolution of a customary marriage occurs first at the local level, between individuals and families. This follows the pattern before the adoption of the RCMA, whereby divorce occurred by way of agreement between the