Die weg vorentoe: Unifikasie of pluralisme van die Suid-Afrikaanse huweliksreg

Abstract

South Africa has a heterogeneous society that is mainly governed by a western orientated legal system. Various cultural and religious subgroups live in accordance with normative rules and customs that are in conflict with the current legal system. The state is currently endeavouring to acknowledge the cultural and religious diversity in the country due to the Constitution and international human rights conventions. The question that arises is which model of recognition should be followed to recognise the diverse marriage systems in South Africa. The Recognition of Customary Marriages Act 120 of 1998 integrates customary marriage law into civil marriage law. The draft bill on the recognition of Islamic marriages endeavours to harmonise Islamic marriage law with civil marriage law. Unification of customary law or religious law and the general law of the country is difficult, due to the unconformable nature of the different normative systems. Unification of religious law and secular law is even harder. Customary law is based on customs that are more susceptible to acculturation than religious law. Religious law is more rigid and unchangeable. Unification of family law is extremely difficult due to the fact that it forms part of an individual’s private sphere and is practiced in his/her daily life. Unification and harmonisation is extremely difficult without the consent of the people living in accordance with the particular customary or religious personal system. The most practical way of dealing with legal pluralism is to recognise pluralism, while harmonising the personal law systems with the Constitution.