Accepted paper:

Judicial recognition of legal pluralism in marriage law in South Africa: developmental function of the courts

Authors:

Christa Rautenbach (North-West University)

Paper short abstract:

The question which will be looked at in this paper is whether the South African judiciary's found constitutionally endorsed developmental function has been instrumental in the recognition of family diversity in South Africa. The focus will be on Muslim marriages.

Paper long abstract:

South Africa has a mixed, pluralistic legal system which reflects the plurality of its society. One area of law where this is particularly evident is family law. Nevertheless, the Marriage Act 25 of 1961 was the only Act that prescribing uniform rules for all marriages, except those concluded in terms of customary law. In 1998, the Recognition of Customary Marriages Act 200 of 1998 was promulgated to recognise the validity of monogamous and polygynous customary marriages. More recently, the Civil Union Act 17 of 2006 was passed to accept the fact that other forms of marriage, such as same sex unions and domestic partnerships, also exist. Moreover, in the pipeline is legislation aimed at recognising the validity of monogamous and polygynous Muslim marriages. While future legislation is being debated, the judiciary has been dealing with day-to-day inequalities as a result of marriage forms not yet recognised and regulated by the South African legislature. These inequalities relate to various domains, namely inaccessibility to financial resources, health outcomes and maintenance, including the quality of family relationships and other ties to the broader community. It is trite that South Africa became a democracy in 1994 with a new constitutional dispensation and the judiciary obtained the power to develop the common law and to interpret legislation in line with the new Constitution. The question which will be looked at in this paper is whether the judiciary's newly found developmental function has been instrumental in the recognition of family diversity in South Africa. The focus will be on Muslim marriages.

panel SE01
Legal features of cultural diversity: experiences from the African continent (IUAES Commission on Legal Pluralism)