Many women in South Africa are married under customary law. Because of the system of apartheid, customary unions were not fully recognised by South African law. Parliament will introduce a draft law which will recognise African Customary law.

It is very important that women decide what African Customary marriage is and which laws of marriage should be written down and included in the law to ensure that women's right are protected. Members of communities and organisations will be able to make an input on the draft law before it is passed by parliament. Some of the aspects of marriage are discussed in this pamphlet.

Minority status

Women married under customary law are minors. This means that women cannot contract on their own, for example to buy goods. Women cannot take someone to court and cannot own property. The law must be changed so that women can own property, buy and sell goods and take someone to court. Women should no longer be minors. Women should be able to act without the help of an older male.

Property

Women should be able to have their own property. Under civil law a husband and wife own all their property together. If the parties get divorced, the husband and the wife each get half of all the property. One can chose to change that system by signing a separate contract. If this is included in African customary marriage, women will be protected because they will own half of the property. The husband won't be able to leave the wife with no property.

Lobola

Many people feel that a marriage is not a customary marriage if no lobola is paid. Some women say that lobola has changed over the years and that the way in which it is practised now discriminates against women. Women must decide whether they want lobola and what it means. Is a marriage only valid if lobola has been paid? What happens to children if lobola is not paid? What happens if the lobola is paid and the marriage ends?

Polygamy

It is not sure how many polygamous marriages there still are in South Africa. Some women feel that it should be banned or made illegal. Other women feel that it should not be banned because there are less and less polygamous marriages.

How do we protect women who are married under polygamy now? Women need to ensure that their right to their children and property is protected and that they are not made poorer when the husband takes another wife. Women need to ask whether a husband will be allowed to take another wife without the first wife agreeing to the second marriage.

Consent to marriage

Women should be able to marry without the permission of their parents. The permission of parents shiould only be necessary if the child who wants to get married is a minor. Both women and men should only be able to get married when they are 18.

Women should not have to marry a person that they do not wish to marry. The consent of both the husband and the wife must be given for the marriage.

Registration

Should all customary marriaged be registered? Registration could provide protection for women and is useful to obtain benefits, where the law requires proof of marriage.

Divorce

The husband or the wife should be able to apply to court for a divorce if the marriage has broken down. The parties should be able to approach a court of law to get a divorce order.

A woman should be able to apply to court to get maintenance from the husband if she cannot support herself.

Children

When parties to a marriage get divorced it should be possible for either parent to have rights of custody, guardianship and access to the child. The custody and guardianship could be joint or separate.The court should decide what is in the best interests of the child.