If the state is committed to reforming South Africa’s family law in a manner that realises rights, it must provide a broader recognition and protection of the diversity of relationships and family structures in South Africa. This must include a recognition of domestic partnerships, religious and customary marriages.
In 1996, the census data recorded that more than 1.2 million people in South Africa identified themselves as unmarried but cohabiting (living with their partner). In 2001 the number of persons identifying themselves as living together nearly doubled to almost 2.4 million and by 2011, the number had tripled to over 3.5 million.
What does South Africans’ increasing cohabitation have to do with the recent law reforms proposed in the government’s Green Paper on Marriage? It is just one example of how the legislative framework is not aligned with people’s lived reality and the constitutional mandate of equality and dignity in our diversity.
Deeply entrenched patriarchy
Prior to 1994, our family laws were constructed on European Christian traditions and values that specifically excluded most other types of relationships and marriages. Post-1994 some reforms were introduced, including the Recognition of Customary Marriages Act of 1998 and later the Civil Union Act of 2006. However, the legal regime pertaining to personal or intimate relationships is still not aligned with Constitutional values and rights.
For this reason, the Women’s Legal Centre (WLC) welcomes the effort of the Department of Home Affairs in the Green Paper on Marriage, which aims to position itself within the Constitutional framework and offer recognition to many in our country who have been, and continue to be, excluded from rights recognition and enjoyment in their relationships. As we have noted in our submissions, for the eventual marriage policy to succeed in remedying the mistakes of the past and providing protection for womxn in South Africa, several glaring omissions must be remedied.
The WLC was disappointed to note that the Green Paper makes no reference to domestic partnerships.
In South Africa today, marriage remains a negotiated and complex matter in which many womxn have limited bargaining power. Our experience at WLC is that in many cases this leads to womxn remaining in domestic partnerships, not only out of choice but often out of necessity.
There are many reasons for this: womxn may depend on their partners for financial support, erroneously believe in the existence of a “common law” marriage or just waiting for the day a womxn’s partner proposes marriage, as traditionally this role is assigned to men in our society. Many womxn with minor children born of a domestic partnership prioritise the needs of their children when deciding on whether to remain in a domestic partnership where she is unable to negotiate marriage to the father.
In recent years, public interest litigation has been successful in incrementally extending the duty of support to permanent life partners. At present, however, the legal position of domestic partnerships is that they do not give rise to patrimonial consequences or a recognised duty of support to womxn in opposite-sex life partnerships. While strategic litigation is an impactful tool to advance womxn’s rights, it is not sustainable for the state to continue to be pushed to realise rights. It is critical for the state to be more proactive in meeting its constitutional obligations.
The WLC therefore strongly recommends that the Department of Home Affairs include the recognition of domestic partnerships in the ambit of its policy development process and legislative framework that is to follow. This will align the Department’s processes with that of the South African Law Reform Commission (SALRC) which has included domestic partnerships as part of their definition of a “protected relationship” and “life partnership” in the two proposed Bills to their Discussion Paper, which was issued for public comment in January 2021.
Religious and customary marriages
What many womxn are not aware of is that many of our religious marriages remain unrecognized within our legislative framework. Marriages that are concluded in terms of the Muslim, Hindu and even Rastafari religions are not provided for in our Marriages Act. This compels many practicing these religions to enter into two marriages, one in terms of their religion and another in terms of the Marriages Act, in order to obtain recognition.
Marriages in terms of the Marriages Act and the Civil Unions Act are able to provide legal recognition, but do not allow for womxn to marry inclusive of their religious beliefs, customs and traditions. Many couples still opt to enter into marriages in terms of the Hindu, Jewish, Muslim and Rastafari religions without recognition or without realising that their marriages are not recognised. Womxn in such marriages rightfully argue that their religious identity is an intrinsic part of their identity and that they have a right to such religious expression in the manner in which they enter marriage.
The Green Paper in its language currently recognises the legal existence of marriages concluded in terms of the Marriages Act, RCMA and the Civil Unions Act. It speaks to the possibility of an omnibus law through which the state will give recognition to the different forms of marriages that are concluded in South Africa. It is a document that shares a vision of the future that we aspire to as a people in South Africa, however it remains critically unclear how existing marriages will be dealt with at a policy level. These are marriages already concluded, but not registered, and which are not recognised within any legal framework. In our view, it is important to ensure that, as we plan for the future, we do not continue to exclude those who are already vulnerable and invisible within the existing framework.
In our view, the Green Paper also fails to address those marriages where dissolution has been granted by a religious authority, but where the division of the estate was not just and equitable as would be done in divorce proceedings within our legislative framework.
Over the past several years hundreds of Muslim and Hindu womxn have sought legal advice from the WLC relating to their rights to housing, land and property as their marriages were dissolved through religious means or their spouse indicated that they were intending to dissolve their marriages through religious mechanisms.
The WLC also notes that the Green paper attempts to address the issue of the diversity of South African family structures and personal or intimate relationships by suggesting either an inclusive customary and religious regime, a religion and culture neutral regime and/or a gender-neutral regime.
As WLC, we believe that these options present a false dichotomy as it inadvertently requires individuals to choose between their different identities in order to marry. As a result, the WLC does not support a neutral marriage regime that seeks to be inclusive, but which would not recognise the intersecting and diverse identities of persons that seek to make use of the marriage or relationship regime. Instead, we have submitted to the Department of Home Affairs that a way needs to be found to recognise the intersectional identity and diverse nature of people’s lives.
South Africa must realise the rights of womxn within their diversity
As we noted above, South African family laws have not been spared the impact and influence of colonialism and apartheid. This has left a legacy not only of racial discrimination, but also a history of discrimination against the interpersonal or intimate relationships that especially black people have engaged in.
Social morality was used to justify the exclusion of recognition of marriages and relationships of black people historically. Religious marriages such as Muslim marriages were not recognised because they were considered to be polygamous in nature and as such contrary to the morals of the people of South Africa. Same-sex relationships were not recognised and even criminalised under our previous legislative framework because of colonial influence into our societal morals. These forms of discriminatory social mores have heavily influenced our legal framework, and although we have long since entered our Constitutional democracy, this area of our law has not kept pace with the reality of womxn and their rights.
To address the discrimination of the past, the Department of Home Affairs has an obligation to view the relationships of persons through an intersectional lens, taking full account of our diversity and how to recognise and realise rights within that diversity.
The Women’s Legal Centre is an African feminist legal centre that advances womxn’s rights and equality using tools such as litigation, advocacy, education, advice, research and training.
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