Compromising Legislation: Upholding the Patriarchy

This chapter provides a comprehensive exploration of the legal status of various marriage forms within South African legislation, tracing its historical evolution from colonialism through the era of segregation and apartheid policies. The preference for monogamous marriages, exclusive recognition of such unions, and the marginalisation of potentially polygamous systems, including African Customary and Muslim marriages, laid the foundation for a complex legal landscape. The examination begins with an exploration of African Customary Law and the Recognition of Customary Marriages Act 120 of 1998 (RCMA). This sets the context for understanding challenges faced by African women under customary law and how the RCMA may not have delivered the transformative impact envisioned. Customary marriage practices, involving quasi-contractual agreements and understandings, are contrasted with civil and religious marriages, offering insights into the administration of marriages based on cultural norms. To contextualise the lack of recognition of Muslim marriages and Personal Law within the broader constitutional framework, the chapter explores the Muslim Marriages Bill (MMB). It raises a fundamental question: can the MMB effectively address the unique needs and interests of Muslim women? The subsequent investigation probes the debates surrounding the Bill, examining arguments both in support of and in opposition to its implementation. The analysis reveals a disconcerting pattern of gender inequality and legal complexity within South African legislation concerning Muslim marriages.