Page 24 - SAReform Book

22 Reform of Customary Marriage, Divorce and Succession in SA
families of the spouses.20 Following the process of dealing with the break- down at the local level, some parties will take the dispute to court. At both local and state level, the findings demonstrate the consequences of not imple- menting the RCMA in a way that can resolve the dissolution of marriage in line with the objectives of the RCMA. The findings show that the parties face several barriers in getting to the courts, while our investigation of the court files shows that the courts do not always apply the correct legal principles when granting divorce orders to individuals who reach the court. While we outline how the courts can overcome the shortcomings in their implementa- tion of the RCMA, we also suggest that the state should turn to other local level institutions to assist with disseminating information and assisting the courts with implementing the RCMA. Our findings on the dissolution of marriages outside and inside the courts follow.
3.5.1 Outside the courts
Despite the 15 years that have passed since the enactment of the RCMA, people continue not to formally dissolve their marriages through the court system. Interestingly, these findings confirm research evidence from the late 1980s and the early 2000s, and suggest a continuation of the informal regula- tion of marital dissolution over three decades.21 The findings demonstrate that people seek assistance and support in a variety of places, depending on the specific aspects of their dispute. Some people are ‘satisfied’ with informal regulation. However, most of the legal reforms introduced by the RCMA to ensure greater gender equality and access to material resources are useful only if the parties dissolve their marriage in a court. If married couples continue to informally regulate the dissolution of their marriage, they will not benefit from the legal rules regulating the consequences of the dissolution of the marriage. The study found that people ignore the definite link between the divorce and its consequences. They view the divorce as a family matter, while they regard the financial consequences of the divorce as an area that falls properly within the purview of the courts.
The state is responsible for ensuring that both spouses in a marital dissolu- tion case have an equal opportunity to access marital resources, but the research findings show that most female divorcees did not receive a share of the matrimonial property, suggesting that the new law does not meet the needs of divorced women.
The research also found that there is a considerable lack of knowledge about the concepts introduced by the RCMA, such as those relating to the matrimonial property systems. These findings show that knowledge and awareness of, and agreement with, the new laws have not filtered down to the ground, and have not been accepted by all participants. Regarding the latter, in some cases, traditional leaders are of the view that traditional dispute resolu-
20 Mbatha et al ‘Culture and religion’ in Bonthuys & Albertyn (eds) Gender, Law and Justice (2007) 183
21 Burman ‘Marriage break-up in South Africa: Holding want at bay?’ (1987) 1 Interna- tional Journal of Law, Policy and the Family 206; Mamashela (n 6).