Law of Life Partnership PDF

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Sithandwa Khuzwayo StudyNotes1. IntroductionThe Nature of Marriage:It is, “... an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilisation nor progress... It is... ...

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Sithandwa Khuzwayo Study Notes 1. Introduction The Nature of Marriage: It is, “. . . an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilisation nor progress. . . It is . . . a social relation, like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilisation, the purest tie of social life, and the true basis of human progress… In strictness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable, and as to these uncontrollable by any contract which they can make. When formed, this relation is no more a contract than "fatherhood" or "sonship" is a contract.” Recognition of the institution of marriage vs the right to marry? Section 15(3)(a)(i) of the Constitution of the Republic of South Africa: -

This section does not prevent legislation from recognising – o Marriages concluded under any tradition, or a system of religious, personal or family law

Dawood and Another v the Minister of Home Affairs: Marriage and the family are social institutions of vital importance. Such relationships are of profound significance to the individuals concerned. 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 marriage therefore is to enter into a relationship that has public significance as well. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting 1

and raising children born of the marriage. These legal obligations perform an important social function. 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. In terms of common law, marriage creates a physical, moral and spiritual community of life. This community of life includes reciprocal obligations of cohabitation, fidelity and sexual intercourse, though these obligations are for the most part not enforceable between the spouses. Importantly, the community of life establishes a reciprocal and enforceable duty of financial support between the spouses and a joint responsibility for the guardianship and custody of children born of the marriage. An obligation of support flows from marriage under African customary law as well. In terms of Muslim personal law, the husband bears an enforceable duty of support of the wife during the subsistence of the marriage.

Volks NO v Robinson and Others 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. Article 18(1) of the African Charter on Human and People’s Rights provides that the “family shall be the natural unit and basis of society.” The relevant part of article 18 provides that: “1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health. 2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.” Under article 23(4) of the International Covenant on Civil and Political Rights, 1966 (ICCPR), States Parties are required to “take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.” Article 23 of the ICCPR provides that: “1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2

2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.” Article 16 of the Universal Declaration of Human Rights, 1948 provide that: “(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” These regional and international instruments underscore the importance of marriage as an institution and the right freely to marry. Therefore, both the Constitution and international instruments impose an obligation on our country to protect the institution of marriage.

2. Social Changes and the Evolution of Traditional Concepts Customary Marriages: Constitution: ss30-31: 30. Language and culture - Everyone has the right to use the language and to partici-. pate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights. 31. Cultural, religious and linguistic communities -- (l) Persons belonging to a CUItural, religious or linguistic community may not be denied the right, with other members of 3

that community(a) to enjoy their culture, practise their religion and use their language; and (h) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights. Constitution: s9: Equality l) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. '.: To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. *(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. Definition of ‘marriage’ in the Children’s Act 38 of 2005

Customary Marriages A customary marriage is a marriage which is concluded in terms of customary law and the Recognition of Customary Marriages Act (confers full legal recognition on monogamous and polygynous customary marriages regardless of when they were concluded) Customary law refers to “the customs and usages traditionally observed among the indigenous African peoples of SA and which form part of the culture of those peoples”

Legal Requirements for Customary Marriages Marriages entered into before the coming into operation of the Act A marriage concluded before the coming into operation of the Act is only valid if it complies with the customary law requirements for a valid marriage Kwa-Zulu Natal v Rest of SA Zulu customary law has been partly codified for KZN: KZN Act on the codes of Zulu law & Natal Code of Zulu law (virtually identical) -

They require that the bride must publically declare to the official witness that the marriage is taking place of her own free will and with her consent and if either future spouse is a minor, their father or legal guardian must consent

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The codes do not expressly stipulate this, but lobolo (or bride wealth) is customarily delivered o The bridegroom or head of his family gives property to the head of the bride’s family in consideration of the marriage

Uncodified systems of customary marriage law apply to the rest of the country -

Regardless of the spouses age, both of them and the bride’s father or legal guardian must consent to the marriage

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If bridegroom is a minor, the same people or family head must also consent to the marriage 5

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Spouses must be over the age of puberty and not within prohibited degrees of relationship

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Wife must be handed over to her husband’s family and live with her husband

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Lobolo is customarily delivered

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Often a ceremony takes place in celebration of a marriage

Marriages entered into after the coming into operation of the Act -

Bride and groom are over the age of 18, both consent to the marriage, and the marriage is negotiated and entered into or celebrated in accordance with the customary law

MM v MN -

The CC has to decide whether a husband may enter into another customary marriage without his first wife’s consent

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Parties married in terms of Xitsonga customary law – requires the wife’s consent

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When a VaTsonga man decides to enter into a further customary marriage, he must inform his first wife – the wife is expected to agree

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If she withholds consent, and further attempts to persuade does not work, then divorce can occur

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Constitutional rights of dignity and equality dictate that the first wife consent it required o Equality: without consent her right to equality with her husband is completely undermined because she is unable to consider or protect her position as regards to her personal life, her sexual and reproductive health o Dignity: blatant intrusion of dignity without consent

Minors Customary Marriage If either party to a customary marriage is a minor, the minor’s parent(s) or legal guardian must consent to the marriage – if the consent cannot be obtained then s25 of the Marriage Act applies -

If parent, legal guardian or presiding officer withholds consent – approach HC for consent

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Consent if refusal is without adequate reason or contrary to minors best interests

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Must also obtain written consent from Minister of Home Affairs – only if desirable for both parties

If no consent obtained, marriage is voidable at the instance of the minor or parents/legal guardian -

Application to have it set aside must happen within 6 weeks of the marriage/ parents aware of marriage existence

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Dissolved if it is in the best interests of the minor

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Minister may also ratify the marriage if consent not originally obtained

Registration -

The spouses must register the marriage – non-registration does not affect the validity of the marriage o Must register within 3 months of the wedding

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Either spouse may register the wedding and furnish details to confirm existence of marriage o If neither spouse can do it, a person with sufficient interest can do it

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If satisfied the marriage exists, must issue a certificate of registration – prima facie proof that existence of customary marriage is there

Patrimonial Consequences of the Marriage and the Control of the Matrimonial property Patrimonial consequences depend on whether the marriage is monogamous or polygynous Monogamous Customary Marriages

Gumede v President of the RSA Section 7(2) of the Recognition of Customary Marriages Act applies to every monogamous customary marriage, regardless of the date on which the marriage was concluded -

Before the decision, s7(2) applied to marriages commenced after the Act whereas s7(1) applied to monogamous marriages before commencement of Act

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S7(1) provided customary marriages patrimonial consequences were governed by customary law 7

o This meant that husband owned and controlled all family property and the wife had no claim over the family property -

CC held: depriving the wife of a claim to family property because of the date which the marriage was entered into constitutes unjustifiable unfair discrimination on the ground of gender o Declared s7(1) unconstitutional and invalid o S7(2) now applies to all monogamous marriages while s7(1) applies to polygynous marriages before the commencement of the Act o S7(2) provides that matrimonial property system in a monogamous customary marriage is determined by the same rules that apply to civil marriages

Recognition of Muslim Marriages Pre-constitution: recognition seen as ‘retrograde step & entirely immoral’. Also nonrecognition = unlikely to cause ‘real hardship’ HOWEVER: Post Constitutional:

Hassam v Jacobs “Contrasting the ethos which informed the boni mores before the new constitutional order with that which informs the current constitutional dispensation, the question remains whether affording protection to spouses in polygynous Muslim marriages under the Act can be regarded as a retrograde step and entirely immoral? The answer is a resounding NO. I emphasise that the content of public policy must now be determined with reference to the founding values underlying our constitutional democracy, including human dignity and equality, in contrast to the rigidly exclusive approach that was based on the values and beliefs of a limited sector of society” Various Acts or sections of Acts expressly provide that they apply to religious marriages – whole acts also apply to religious marriages: -

Births and Deaths Registration Act

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Domestic Violence Act

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Children’s Act

ALSO

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Criminal Procedure Act 51 of 1977 – Section 195(2) For the purposes of the law of evidence in criminal proceedings 'marriage' shall include a customary marriage or customary union concluded under the indigenous law and custom of any of the indigenous peoples of the Republic of South Africa or any marriage concluded under any system of religious law -

These all apply regardless of monogamous or polygynous marriages

Apart from the statutory recognition referred to – courts have interpreted the wording of some statutory provisions to include Muslim marriages within their ambit: -

S39(2) of the Constitution requires courts when interpreting any legislation to “promote the spirit, purport and object of the BoR”

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Consistent with this interpretive injunction, where possible, legislation must be read in a manner that gives effect to the values of our constitutional democracy – human dignity, equality and freedom

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Where legislation is capable of more than one plausible construction, the one which brings the legislation within constitutional bounds must be preferred.

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The new constitutional order is based on the recognition of our diversity and tolerance for other religious faiths

Daniel v Campbell In 2004, the Constitutional Court decided that a Muslim spouse in a monogamous Muslim marriage had the right to inherit and to claim maintenance from their deceased spouse in terms of the Intestate Succession Act 81 of 1987 and also in terms of the Maintenance of Surviving Spouses Act 27 of 1990. -

The applicant married her deceased husband in accordance with Muslim rites

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The monogamous marriage was not solemnised by a marriage officer who was appointed in terms of the Marriage Act

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The house was the main asset in the deceased estate which was the applicants, but registered in her husband’s name upon marriage

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The deceased died intestate

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The applicant approached the HC for an order declaring that she was her husband’s ‘spouse’ and ‘survivor’

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The HC informed the applicant that she could not inherit because she was not a surviving spouse in terms of the Intestate Succession Act because they had been married merely by Muslim rites as well as the Maintenance of Surviving Spouses Act because she was not a ‘survivor’ in terms of the Act o The constitutional values of equality, tolerance and respect for diversity point strongly in favour of giving the word “spouse” a broad and inclusive construction

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The central question was not whether the applicant was lawfully married to the deceased, but whether the protection which the Acts intend widows to enjoy should be withheld from relationships such as hers

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The ordinary meaning of “spouse” meant “married person; a husband and a wife” o The applicant falls well within the meaning of spouse

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I must also be pointed out that the marriage was contracted according to the tenets of a major religion; and … it involved ‘a very public ceremony, special formalities and onerous obligations for both parents in terms of Islamic law

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The HC held that the applicant was not protected by the acts, that his violated her right to equality and that the provisions were unconstitutional o The CC disagreed with this and stated that the potential under-inclusiveness and consequent discriminatory impact is avoided simply by correcting the interpretation

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The CC set the HC decision aside, and held that the words “spouse” and “survivor” as the two Acts include the surviving spouse in a monogamous Muslim marriage – the court found nothing in the word “spouse” to suggest that it excludes spouses of a marriage by Muslim rites o The answer must be in favour of the interpretation which is consistent with the ordinary meaning of the word “spouse”, aligns itself with the spirit of the Constitution and furthers the objectives of the Act

Hassam v Jacobs In 2009, the Constitutional Court held that the right to claim maintenance from a deceased spouse, as decided in the Daniels case, was also to be extended to polygamous Muslim marriages as well.

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The applicant married her deceased husband in accordance with Muslim rites, and she was not the only wife

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Husband died intestate

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The executor of the estate refused to regard the applicant as the deceased spouse for Intestate Succession Act and Maintenance of Surviving Spouses Act and rejected to inherit and to receive maintenance from the deceased estate o By discriminating against women in polygynous Muslim marriages on the grounds of religion, gender and marital status, the Act clearly reinforces a pattern of stereotyping and patriarchal practices that relegates women in these marriages to be unworthy of protection

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HC held that the word ‘survivor’ in the Maintenance Act can be applied to more than one survivor, therefore the Act applies to spouses in polygynous Muslim marriages

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The Intestate Succession Act, the words “spouse” in s1(4)(f) ...