Professional Documents
Culture Documents
1. Introduction
NATURE OF MARRIAGE:
Across the ages , a particular familial form has held monogamous, heterosexual,
permanent and reproductive. This family is natural and has helped establish and
maintain a kind for civilisation, including our own
The case in South Africa:
- This particular description of marriage is problematic in South Africa because
-
industry
Difficult to find a partner that shares the same traditional ideal
Ellman [Martial roles and declining marital rates] suggests that this is
because:
Womens education and labour force participation (straying away
from the man only being the breadwinner) BUT PRIMARILY
intercourse.
The courts consider marriage a highly significant institution
Para 30: Marriage and the family are social institutions of vital importance. Entering into and
sustaining a marriage is a matter of intense private significance to the parties that marriage, for they
make a promise to one another to establish an maintain an intimate relationship for the rest of their
lives which they acknowledge obliges them to support one another , to live together and to be
faithful to one another... But such relationships have more than personal significance at least in part
because human beings are social beings whose humanity is expressed through their relationships
with others. Entering into a marriage therefor is to enter into a relationship that has public
significance as well
Para 31: The institutions of marriage and the family are important social institutions that provide
for the security, support and companionship of members of our society and bear an important
role in the rearing of children. The celebration of a marriage gives rise to moral and legal
obligations... These legal obligations perform an important social function.
Para 32: South African families are diverse in character and marriages can be contracted under
several different legal regimes including African customary law, Islamic personal law and the civil
or common law. However, full legal recognition has historically been afforded only to civil
Para 80: Although our Constitution contains no express provision protecting the institution of
marriage, it nevertheless recognises the right to freely marry and raise a family
Para 81: There can be no doubt that our Constitution recognises the institution of marriage. This
much is apparent from section 15(3)(a)(I) which in substance makes provision for the recognition
of marriages concluded under any tradition, or a system of religious, personal or family law
Para 82: The Constitutional recognition of the right freely to marry and the institution of marriage
is consistent with the obligations imposed on our country by international and regional human
rights instruments which impose obligations upon states to respect and protect marriage
Para 83: Under article 23(4) of the ICCPR states that state parties are required to take appropriate
steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and
its dissolution.
Para 84: Article 16 of the Universal Declaration of Human Rights provides that men and women
have the right to marry and to found a family; as well as entitled to equal rights. Furthermore,
marriage shall only be entered into with the free and full consents of the intending spouses
Para 85: Therefore, both the Constitution and international instruments impose an obligation on our
country to protect the institution of marriage.
CIVIL MARRIAGES
Concluded in terms of Marriage Act or the Civil Union Act
Law does not identify civil marriages with any particular religion secular
Monogamous
CUSTOMARY MARRIAGES
Definition: a customary marriage is one that is considered to be in line with customary
law and the Recognition of Customary Marriages Act
Customary law refers to the customs and usages traditionally observed among the
indigenous African people of South Africa
Prior to 2000 customary marriages only received limited recognition : this was due
to the fact that customary law permits polygyny, which is not law according to the
Marriage Act
Recognition of Customary Marriages Act now fully recognised :
- Role of the act is to bring customary marriages in line with the precepts of the
Constitution
While there are several key differences between the RCMA and Marriages
Act, many of the requirements and consequences imposed by the RCMA are
institution itself)
Sections of Constitution that support recognition of customary marriages:
s9(3) and (4); 15(1) and (3) also s30 and s(31)
Sections against recognition: s9(3) and (4) and s10 again perhaps against the
MUSLIM MARRIAGES
Current position = Muslim marriages receive only limited recognition.
- There has been an attempt to force government to legislate: Womens Legal
Centre Trust v President of the Republic of South Africa and Others 2009 (6)
SA 94 (CC)
Application for direct access
Sought a declaratory order and order directing the President and
Parliament (ito s 167(4) of the Constitution)
Para 4: NOT ABOUT
Statutory recognition of Muslim marriages:
- Definition of marriage in Childrens Act 38 of 2005
of religious law
Judicial recognition of Muslim marriages
Ryland v Edros 1997 (2) SA 690
The parties were married according to Muslim rites. The husband had terminated the
defendant.
Courts can enforce contracts arising from (monogamous) Muslim marriages
Accordingly it was decided that the defendant was entitled to succeed in her claim for
non-prescriptive arrear maintenance
Hassam v Jacobs [2008] 4 ALL SA 350 (C) & 2009 (5) SA 572 (CC)
joined in proceedings)
Recognises a husbands right to talaq his wife but regulates the
practice
Option
HINDU MARRIAGES
Singh v Ramparsad
Plaintiff and husband married in terms of the Vedic branch of the Hindu religion
This branch does not recognise divorce (marriage is an in dissoluble sacrament)
Plaintiff and defendant are separated and the plaintiff wants divorce. She approaches
Govender v Ragavaya NO
Volks v Robinson
Courts had skirted the issue of heterosexual life partnerships in comtext of same-sex
partners
Confirmation of HC order exclusion i.t.o Maintenance of the Surviving Spouses Act
= unconstitutional (unjustifiably unfair discrimination and violation of the righ to
dignity
Majority upheld appeal:
Inappropriate to ex post facto impose a duty of support
Fourie and Bonthuys approached HC in 2002 compel the state to register their
marriage.
HC refused application and they applied to CC for direct access which was similarly
refused.
The SCA found it appropirate to develop the common law to include the registration
of same-sex marriages
Arguments:
Inability to procreate (para 85)
- Demeaning those who are unable or choose not to
- Not relevant from a legal/constitutional perspective