Page 31 - SAReform Book

Summary Research Report 29
that the parties use multiple forums to resolve family disputes. Most of the disputes were taken to the family, and resort to the courts was less common. More specifically, women approached their husbands to resolve their disputes in the first instance, but in most cases the disputes were not resolved at this level as men were not inclined to assist with the resolution sought, whereupon women turned to the families of the couple. For various reasons, including the unequal power relations between wives, husbands, and husbands’ families25 within the patrilineal family structure, families were generally not effective in resolving couples’ disputes either.26 This leads to the conclusion that many parties to marriages are not supported by their families or the state in resolv- ing their family disputes. It is also important to point out that while the majority of male and female participants in the research (and just under half of the traditional leaders) believe and agree that women should turn to the state when the husband does not apply the correct marital property regime, given that the couple were married in community of property, none of the partici- pants turned to the court to resolve their own disputes. There is, therefore, a paradoxical discrepancy between practices and perceptions.
We have argued elsewhere27 that state support is required for assistance in marital conflicts related to the dissolution of customary marriages. The per- ception was expressed by participants in the research that, because of unequal power relations that were perceived to exist between husbands and wives, individuals would not be able to obtain equitable outcomes to these disputes on their own. On the other hand, state courts were perceived as powerful due to their ability to enforce, against uncooperative spouses, the performance of their spousal and parental obligations. Courts were also perceived ‘to be able to provide a forum for dispute resolution which protects individuals from highly adversarial and prejudicial conflicts with their family members’.28 Thus, state courts were perceived as having the capacity to neutralise power imbalances within the family.
We have also argued that the reasons for the discrepancy between these perceptions and what the parties did in practice include the structural or access barriers faced by rural women in particular in bringing matters to court.29 These barriers may be the lack of information about the RCMA and the rights it creates under the different matrimonial property regimes, financial con-
25 See Moore ‘Forms of femininity at the end of a customary marriage’ Gender & Society (forthcoming).
26 The authors acknowledge that they did not include a sample of married individuals who had had a dispute but who resolved the dispute effectively within the family. Therefore the dynamics and effectiveness of the use of the family as a dispute resolution forum requires further research.
27 That is, in a paper based on the findings of this research. See Button et al ‘South Africa’s system of dispute resolution forums: The role of the family and the state in customary marriage dissolution’ Journal of Southern African Studies (forthcoming).
28 Ibid. 29 Ibid.