Protection of Women's Marital Property Rights upon the Dissolution of a Customary Marriage in South Africa: A View from Inside and Outside the Courts
Working Paper
2015
Permanent link to this Item
Authors
Journal Title
Link to Journal
Journal ISSN
Volume Title
Publisher
Publisher
University of Cape Town
Department
Faculty
License
Series
Abstract
Based on an empirical study of marital dissolution, this paper examines the effectiveness of the Recognition of Customary Marriages Act 1998 and its enforcing institutions to provide the necessary protection of women's marital property rights when customary marriages end. Drawing on data from court (divorce) files and semi-structured interviews, the paper will examine the effectiveness of the new laws for individuals who seek to regulate marital dissolution through both judicial and extra judicial systems. In doing so, it examines how judicial and extrajudicial systems interact and co-exist. The findings show that both systems of regulation are failing to recognise women's right to an equitable distribution of the marital estate upon divorce. The paper demonstrates the weaknesses inherent in the judicial regulation of divorce combined with the consequences of the continued private regulation of marital dissolution. Resistance to an equal division of marital assets continues and a more dedicated and systematic effort is required to curb financial exploitation upon the dissolution of a customary marriage if the State wants women living under customary law to enjoy their human rights under the Constitution.
Description
Reference:
Moore, E., & Himonga, C. (2015). Protection of Women's Marital Property Rights upon the Dissolution of a Customary Marriage in South Africa: A View from inside and Outside the Courts.