Proposal to reform marriage law in SA

05 May 2019 - 00:00 By SIPOKAZI FOKAZI


When Alima Jamali got married, her husband asked her to stop working so she could take care of their household affairs, including raising their child.
More than a decade later the promise of working in a family business is yet to become a reality, leaving the 54-year-old financially dependent on her husband.
But what keeps this Cape Town mother awake at night is the possibility of divorce, because she is married under Muslim rites that are not recognised by the law.
"Should he go ahead with the divorce that he's been threatening me with, I will be left with absolutely nothing," said Jamali. 
"According to Islam, he is only obliged to support me during the iddah period - the three complete menstrual cycles after the divorce in which a woman is not permitted to remarry. If he dies tomorrow my daughter and I will probably be kicked out of our property by his family."
Women in Jamali's position are pinning their hopes on proposals for a single marriage law to give everyone equal rights, regardless of their religious and cultural background.
This month, the South African Law Reform Commission began investigating the viability of a single statute to replace the Marriage Act of 1961, the Recognition of Customary Marriages Act of 1998 and the Civil Union Act of 2006.
As well as containing different marriage ages, for example, the laws leave women like Jamali in the same position as unmarried intimate partners.
The commission is considering either a single act with a unified set of requirements, or an "omnibus option" reflecting the current diverse set of legal requirements and consequences of civil, religious and customary marriages and civil unions.
Commission spokesperson Steve Mahlangu said the investigation will look into consent and capacity to marry, minimum age, the issuing of marriage licences and marriage ceremonies. It will also look into spousal support, antenuptial agreements, cohabitation rights, dispute resolution in family matters and bogus marriages.
ACTS OF MARRIAGE
• The Marriage Act, largely derived from Christian and English law, is essentially monogamous, heterosexual and adult, permitting child marriages only if the home affairs minister gives consent. It regards under-21s as minors, and says girls of 15 and boys of 18 years can marry only with consent.
• The Civil Union Act allows same-sex and heterosexual couples to marry from the age of 18. Couples can register their union as a marriage or a civil partnership.
• The Recognition of Customary Marriages Act says marriages can be monogamous or polygamous, and can entail customary practices such as the payment of bride wealth (lobola). These marriages have no legal validity unless they are registered, mostly as civil unions.

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