Page 26 - SAReform Book

24 Reform of Customary Marriage, Divorce and Succession in SA
In Gumede v President of the Republic of South Africa,22 Moseneke J wrote that the purposes of the RCMA included regulating the proprietary conse- quences of marriages and their dissolution under judicial supervision. This case can be viewed as good customary law. Judges and lawyers should, accordingly, scrutinise and debate the evidence and the facts of the case, and effectively supervise the termination of a marriage and its consequences, indicating what the courts take into account in making their awards regarding these consequences, to the benefit of all parties involved.
Needless to say, the approach adopted by the courts to regulating the matrimonial property regime is often lacking in sensitivity about the social and educational backgrounds of the litigants appearing before them and the complexity of the new laws. The state is responsible for allocating the appro- priate division of the matrimonial property benefits of the marriage and for upholding the constitutional principle of equal treatment of women (or the dependent spouse).
A further problem was observed in several cases where litigants relied on customary law to justify their claim to an uneven share of the matrimonial property. This suggests that legal representatives are not assisting with the implementation of the RCMA by ensuring that the correct law is applied. The problem also suggests that the lawyers involved in the cases are unaware of the parties’ entitlements under the RCMA. We therefore suggest that there exists a great need for not only public information but also, and most impor- tantly, for the legal training of all persons involved in the implementation of the RCMA — for example, judges, lawyers, members of the public — in the principles and intricacies of this Act. Where such training is being offered, for example, by Justice College, the curriculum must be reconsidered to take into account the issues identified by this study. We also emphasise the need to update the Bench Book, which is apparently being utilised by some courts as a guide to the implementation of the RCMA.
The study also found cases in which maintenance issues in divorce pro- ceedings were referred to the maintenance magistrates’ courts. This practice is problematic23 for several reasons: (a) The settlement of issues connected to the consequences of the dissolution of the marriage should be seen as a package and dealt with at the same time. Expecting the parties to return to a court for maintenance is unreasonable. (b) Maintenance issues are intrinsi- cally connected with the division of the assets and the custody order or access arrangements. (c) It is understood that the supporting evidence required to assess maintenance may be onerous to obtain, but we argue that this support- ing evidence is necessary for assessing the division and distribution of the
22 2009 (3) SA 152 (CC) para 42.
23 Research evidence dating from the early 1980s warns us of the problems associated with directing people to pursue maintenance claims in such courts. Burman (n 20) at 215 reported that the interviewees in her study found that this process could require at least two further days off work and was frequently both frustrating and fruitless. In addition, the research found that, unless a lawyer was employed, an unsympathetic maintenance officer can prevent all but the most determined from pursuing their applications.