Gender equality in customary marriages: Is the deregulation of customary marriages the solution?

Abstract

Although the Recognition of Customary Marriages Act 120 of 1998 (RCMA) contains provisions to ensure equality between the spouses in a customary marriage, the RCMA has serious deficiencies that are detrimental to the weaker party in customary marriages. To rectify the deficiencies in customary marriages and other relationships, the South African Law Reform Commission (SALRC) and the Department of Home Affairs (DHA) are conducting simultaneous investigations into South African marriage law. This article critically discusses the proposals of the SALRC and the DHA to determine whether the proposed legislation will address the current deficiencies in the RCMA. As an alternative to the proposals of the SALRC and the DHA, the deregulation of customary marriages is advanced as a solution to the inequitable position of spouses in customary marriages under the RCMA.