In the context of a perceived globalisation of human rights, this thesis considers whether constitutional rights to equality and non-discrimination apply to polygynous customary marriages in Commonwealth Africa from a legislative perspective. In other words, I examine whether there is a correlation between constitutional protection of rights and legislation, sensitive to the human rights of women in polygynous customary marriages. It is shown that at a constitutional level, there is often a strong indication that human rights to equality and non-discrimination apply to customary laws, including customary institutions of marriage. This, however, often does not translate to a statutory level, resulting in marriage laws that largely side-line and ignore the possibility of polygyny in a customary marriage and the potential for human rights violations therein. I analyze the discursive mechanisms that facilitate the contradiction that arises when constitutional commitments to protect the rights of women in polygynous marriages are not met at a legislative level. I argue that practices of 'silence' and 'omission' are used to perpetuate the myth that monogamy is the default position of all marriages governed by statute. This effectively constructs polygynous marriages as an aberration to the norm, and further renders invisible the parties in polygynous customary marriages. In failing to provide statutory guidance for the complexities that may arise in polygynous marriages, I argue that women in polygynous marriages are discriminated against in comparison to women in monogamous relationships.

Customary marriages are essentially polygamous. Courts were of the opinion that the nature of customary marriages are against public policy and natural justice. The Interim Constitution, 1993 gave effect to the consequences of customary marriages in principle XIII, while section 15(3) of the Constitution of the Republic of South Africa, 1996 allows for the recognition of marriages concluded in terms of custom. These marriages may, however not be in conflict with the Bill of Rights. Recognition was given to lobolo as the courts could not find it to be against public policy as is reflected initially in section 11 (1) of the Black Administration Act 38 of 1927 and subsequently in section 54A of the Magistrate's Court Act 32 of 1944 and section 1 of the Law of Evidence Amendment Act 45 of 1988. In 1998 the Recognition of Customary Marriages Act 120 of 1998 was promulgated to give recognition to customary marriages. In this study, the question to what extent customary marriages and the Recognition of Customary Marriages Act 120 of 1998 are consistent with the Constitution within a democratic society based on equality, freedom and human dignity is addressed. It was found that the purpose of the Recognition of Customary Marriages Act 120 of 1998 is not only to give recognition to customary marriages, but to amend the traditional customary rules which may be inconsistent with the Bill of Rights. The Act succeeds in this. / Thesis (LL.M.)--North-West University, Potchefstroom Campus, 2006.

Customary marriages are essentially polygamous. Courts were of the opinion that the nature of customary marriages are against public policy and natural justice. The Interim Constitution, 1993 gave effect to the consequences of customary marriages in principle XIII, while section 15(3) of the Constitution of the Republic of South Africa, 1996 allows for the recognition of marriages concluded in terms of custom. These marriages may, however not be in conflict with the Bill of Rights. Recognition was given to lobolo as the courts could not find it to be against public policy as is reflected initially in section 11 (1) of the Black Administration Act 38 of 1927 and subsequently in section 54A of the Magistrate's Court Act 32 of 1944 and section 1 of the Law of Evidence Amendment Act 45 of 1988. In 1998 the Recognition of Customary Marriages Act 120 of 1998 was promulgated to give recognition to customary marriages. In this study, the question to what extent customary marriages and the Recognition of Customary Marriages Act 120 of 1998 are consistent with the Constitution within a democratic society based on equality, freedom and human dignity is addressed. It was found that the purpose of the Recognition of Customary Marriages Act 120 of 1998 is not only to give recognition to customary marriages, but to amend the traditional customary rules which may be inconsistent with the Bill of Rights. The Act succeeds in this. / Thesis (LL.M.)--North-West University, Potchefstroom Campus, 2006.

In recent times, the incidence of single-parent families has increased rapidly with the principle cause being the rising divorce rate. The vast majority of these single-parent families are headed by women and a predominantly common factor in these households is the extent to which they are financially impoverished after divorce. This situation has given rise to the phenomenon known as the feminisation of poverty, where women are seen to make up the majority of the poor. This study examines the many varied factors contributing to this phenomenon and discusses some of the general solutions offered world-wide to address these poverty-stricken households. An assessment is then made of those legal solutions most appropriate for South Africa / Law / LL.M.

Text in Afrikaans, abstract in Afrikaans and English / Die regsposisie van die deelgenote tot 'n de facto huwelik word krities ondersoek met inagneming van die huidige Suid-Afrikaanse regsposisie, oorsigtelike regsvergelyking, die morele argument, en die invloed van die Grondwet van Suid-Afrika. Die verskillende vorme van de facto huwelike in sy bree interpretasie word in oenskou geneem en die volgende verbindings word bespreek: saamwoonverhoudings; inheemsregtelike huwelike; huwelike voortspruitend uit godsdienstige tradisies; en homoseksuele huwelike. Dit word gevind dat die Suid-Afrikaanse regsposisie tans baie onbevredigend is. Sekere voorstelle vir wysigings word aan die hand gedoen, en daar word gewys op die unieke kenmerke van die Suid-Afrikaanse situasie wat in ag geneem moet word in die vorming van 'n nuwe benadering. Dit word bepleit dat die regslui die uitdaging moet aangryp en met innoverende denke 'n nuwe bestel vir die Suid-Afrikaanse reg moet skep wat buigbaar en soepel is, maar terselfdertyd regsekerheid bevorder. / The legal status of the parties to a de facto marriage is investigated, taking into consideration the present South African position, legal comparison, the moral argument, and the influence of the Constitution of South Africa. The different forms of the de facto marriage in its wide interpretation are reviewed and the following relationships are discussed: cohabitation relationships; customary marriages; marriages resulting from religious traditions; and homosexual relationships. It is found that the present South African legal position is very unsatisfactory. Several suggestions for amendments are made, and the unique characteristics of the South African situation to be taken into consideration in forming a new approach, are highlighted. It is pleaded that the legal profession accept the challenge to create, with innovation, a new system for South African law which will be flexible, but, will at the same time ensure certainty in law. / Private Law / LL. M.

In recent times, the incidence of single-parent families has increased rapidly with the principle cause being the rising divorce rate. The vast majority of these single-parent families are headed by women and a predominantly common factor in these households is the extent to which they are financially impoverished after divorce. This situation has given rise to the phenomenon known as the feminisation of poverty, where women are seen to make up the majority of the poor. This study examines the many varied factors contributing to this phenomenon and discusses some of the general solutions offered world-wide to address these poverty-stricken households. An assessment is then made of those legal solutions most appropriate for South Africa / Law / LL.M.

Text in Afrikaans, abstract in Afrikaans and English / Die regsposisie van die deelgenote tot 'n de facto huwelik word krities ondersoek met inagneming van die huidige Suid-Afrikaanse regsposisie, oorsigtelike regsvergelyking, die morele argument, en die invloed van die Grondwet van Suid-Afrika. Die verskillende vorme van de facto huwelike in sy bree interpretasie word in oenskou geneem en die volgende verbindings word bespreek: saamwoonverhoudings; inheemsregtelike huwelike; huwelike voortspruitend uit godsdienstige tradisies; en homoseksuele huwelike. Dit word gevind dat die Suid-Afrikaanse regsposisie tans baie onbevredigend is. Sekere voorstelle vir wysigings word aan die hand gedoen, en daar word gewys op die unieke kenmerke van die Suid-Afrikaanse situasie wat in ag geneem moet word in die vorming van 'n nuwe benadering. Dit word bepleit dat die regslui die uitdaging moet aangryp en met innoverende denke 'n nuwe bestel vir die Suid-Afrikaanse reg moet skep wat buigbaar en soepel is, maar terselfdertyd regsekerheid bevorder. / The legal status of the parties to a de facto marriage is investigated, taking into consideration the present South African position, legal comparison, the moral argument, and the influence of the Constitution of South Africa. The different forms of the de facto marriage in its wide interpretation are reviewed and the following relationships are discussed: cohabitation relationships; customary marriages; marriages resulting from religious traditions; and homosexual relationships. It is found that the present South African legal position is very unsatisfactory. Several suggestions for amendments are made, and the unique characteristics of the South African situation to be taken into consideration in forming a new approach, are highlighted. It is pleaded that the legal profession accept the challenge to create, with innovation, a new system for South African law which will be flexible, but, will at the same time ensure certainty in law. / Private Law / LL. M.