Constitutional Hill

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?

  • mal

    Thanks for taking the question so seriously. I understand the issues much better because of your research.

    It is apparent that permitting the legal marriage of homosexual couples changes the institution of marriage in no way at all. The contract will function just as well for homosexuals as it does for heterosexuals. It is a vexed question for some religious groups, but their separate answer to the problem doesn’t interfere with the contractual part of marriage.

    But polygamy is different. How, for example, does an estate function when there are more than two partners? Does a non-parental partner have automatic guardianship of children in a multi-partner marriage? And so on. These problems can’t be covered by any law that conceives of marriage as an arrangement between couples.

    The question of protection of women in unequal relationships is, to my mind, something of a red herring, because there is no necessary reason why this protection should fall under the umbrella of a marriage contract. Once the definition of a marriage begins to become less uniform, then it might seem to make better sense to define a separate legal protection for women and men which doesn’t refer to any particular form in the relationship. What, after all, is an inheritance right? It is a function of one’s relationship to an estate, not to another person.

    As you say, even if such marriages are not legal, people will adopt living arrangements of these kinds anyway. We should therefore stop looking at marriage as some form of legally-defined cultural politics, and deal in law only with problems that the law has to confront: inheritance, abuse, the status of women and children with respect to men. Getting married is one’s private matter. Only when one screws it up does the law have to be involved!

  • Pierre de Vos

    I agree with your proposal that the law should have a functional approach towards relationships. Whether the Constitutional Court will see it this way is not so clear. They have affirmed in several cases that marriage as an institution is very important and even that people who do not marry “choose” this and therefore cannot be included in protection usually extended to married couples. This means Parliament should legislate appropriately to protect people. Will they?