Quote of the week

[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.

David Medalie
11 December 2006

Customary Marriages unconstitutional?

A reader of this Blog writes:

Marriage in South Africa has other variant forms that are also as inequitable, or even more so, as the previous prohibition on gay people getting married. In particular, there are the ‘cultural’ forms: Muslim marriages and African customary marriages, both of which permit polygyny. I gather that these marriages are recognised under South African law, and that second and later wives receive some legal protection in South African law.

But it would seem to me that the position of polygyny is strained in the face of the Constitution. In particular, why is polygyny protected, but not polyandry? And why does the law require that polygynous marriages derive from some special cultural background?

Could/should polygyny be challenged constitutionally? Or would the correct approach be to establish polygamy equally for all citizens?

This is a fascinating legal issue.

In 1998 Parliament passed the Recognition of Customary Marriages Act which for the first time extended legal recognition to customary marriages – even those marriages where a man is married to more than one wife. Similar recognition has not been extended by the legislature to marriages conducted in terms of Muslim Personal law, although the courts have extended the rights of spouses in monogamous Muslim marriages.

The constitutional argument against the legal recognition of polygynous marriages is based on concerns about gender discrimination. Because only men can take more than one spouse and because of the way such marriages seem to entrench the disempowered position of women in marriage, it is argued that it constitutes unfair discrimination against woman.

Parliament recognised this, but also wished to accommodate the concerns of traditional leaders – a core constituency – so it passed this act that only recognises traditional polygynous marriages. They might argue that section 31 of the Constitution guarantees for every person the right to enjoy their culture and that this justifies the act.

But Section 31 explicitly states that the right to enjoy one’s culture
”may not be exercised in a manner inconsistent with any provision of the Bill of Rights”.

In dealing with marriages conducted in terms of Muslim Personal Law the Constitutional Court was careful to stress that the marriage before them was a monogamous one before they extended the rights to the spouse.

On the face of it this would suggests that if a women who lives in a traditional setup challenges this act, the Court will look long and hard at such a challenge and might find that polygynous marriages are unconstitutional.

The court has already declared invalid the customary law rule of primogeniture which restricted inheritance to male descendants. It has therefore shown that when it comes to gender equality it is prepared to invalidate cultural practices.

But the court will be placed in a very difficult position because the position of a woman in a polygynous marriage differs fundamentally from the position of a woman who stands to inherit in customary law. Customary polygynous marriages will happen no matter what the courts or Parliament say about it, while changed inheritance rules can more easily be enforced.

The question then is: how does one protect the vulnerable woman in such a situation? Maybe one does not protect such a woman by declaring invalid polygynous marriages but by accepting that regulation of such marriages actually provides some legal recognition and protection for the second and third wife.

If one believes – as I do – that the law has a role to play in shaping our view of the world, this is an uneasy compromise because one actually allows the law to sanction a deeply patriarchal institution that will perpetuate gender discrimination.

Extending the right to marry more than one spouse to all in society might be a better way to go although religious conservatives might be a tad upset. But how many men would get involved in multi-partner marriages where they are not the only husband?

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