All wives and unions are equal before the amended law
All wives in customary or polygamous marriages, irrespective of when the marriage was concluded, are finally treated equally when it comes to property rights.
In the past, wives married in terms of custom were sidelined by their relatives and unfairly treated because the law vested no rights of ownership or control over marital property. But this has changed since the end of last month.
An amendment to the Recognition of Customary Marriages Act (RCMA) grants women who entered into monogamous and polygamous customary marriages prior to 1998 equal rights to marital property.
Previously, the law granted such rights to women who entered customary marriages after 1998, thus discriminating against those who did so before 1998.
The effort to redress past transgressions by enacting the RCMA was a step in the right direction, though the Women's Legal Centre correctly found that there may be "challenges emanating from the interpretation and implementation of the RCMA".
To take you back, when the RCMA came into force in November 2000 it had been long overdue. Before the legislation was enacted, wives married in terms of custom and polygamous marriages were not legally recognised.
The Women's Legal Centre described the RCMA as a "legal basis for remedying the denial of legal recognition and consequently legal protection for women married under customary law".
Prior to this recognition, wives married in terms of custom or in polygamous marriages were viewed as minors and only had control over their private property, such as clothing and personal gifts.
Fundamentally, consensus to a marriage was not a requirement and capacity to wed was not considered, thus practices such as ukuthwala were considered norms and accepted by society.
Sadly, teenage girls still suffer from ill-custom practices that are supported by law. For example, presently the law allows parents the right to consent to their children's marriage.
In terms of the law, a 15-year-old girl needs only parental consent to wed a man of any age. When parental consent is not obtained, or a commissioner of child welfare refuses to grant consent, a teenager may apply to a judge of the high court for the go-ahead. This must be amended.
Remember that before the correction wives and their children could be easily kicked out of their homes, humiliated and left destitute without much recourse. Where there may be recourse, justice is not easily accessed.
Access to justice does not only mean the physical access to courts - it incorporates the ability to be effectively heard, according to socioeconomic rights and gender activist Jackie Dugard.
She found that in SA, "the normal difficulties of accessing justice are exacerbated by gross inequalities", so it should come as no surprise that women have not been able to access justice to challenge discriminatory laws due to socioeconomic difficulties.
It is regrettable that women were still discriminated against even though the legislation was meant to protect and benefit them as wives married in terms of custom.
The amendment should be applauded. So, go on and inform those wives in townships and rural are that they now have full property rights.
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