Die weg vorentoe: Unifikasie of pluralisme van die Suid-Afrikaanse huweliksreg
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Authors
Bakker, Pieter
Issue Date
2004-11
Type
Article
Language
Afrikaans
Keywords
Research Subject Categories::LAW/JURISPRUDENCE::Private law , Legal Pluralism , Marriage law
Alternative Title
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.
Description
Citation
Bakker, Pieter "Die weg vorentoe: Unifikasie of pluralisme van die Suid-Afrikaanse huweliksreg" 2004 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 626-640
Publisher
LexisNexis