Comment on the single marriage statute : implications for customary marriages

Abstract

The South African Law Reform Commission has proposed a single marriage statute to reconcile the several enactments regulating marriage in South Africa. This comment argues that the Bill should include old customary marriages in its definition of a customary marriage and is underinclusive in its recognition of polygyny with a religious or cultural basis and not the more general practice of polygamy. Furthermore, the requirement of cohabitation for the recognition of a life partnership is onerous and may exclude vulnerable parties from protection. While the Bill is commended for requiring a husband to obtain the consent of existing wives before he concludes a further marriage, the note recommends that the Bill give meaning to the notion of consent. Finally, the Bill must address existing issues within the Recognition of Customary Marriages Act 120 of 1998 which have invalidated a range of customary marriages too often at the expense of women.