South Africa’s System of Dispute Resolution Forums: The Role of the Family and the State in Customary Marriage Dissolution

Abstract

The Recognition of Customary Marriages Act has been a welcome legislative effort to remedy the vulnerabilities experienced by women in the dissolution of their customary marriages. Through an analysis of research findings, this article contributes to the debate about the achievement of the Act’s objectives. We argue that the Act is falling short in fulfilling its objectives, owing to the shortcomings within South Africa’s system of customary and state dispute resolution forums. Our findings demonstrate that both customary and state dispute resolution forums were under-utilised by couples who experienced the dissolution of their customary marriages. The lack of financial resources, information and power has arguably limited women’s access to state courts upon marital breakdown. Moreover, research participants did not perceive traditional courts as appropriate forums for the resolution of certain customary marriage disputes. We argue that these shortcomings prevent the Act’s application to customary marriage breakdowns. Furthermore, given that the Act is applied in divorce proceedings in state courts to ensure equitable outcomes upon marriage dissolution, the article questions whether state support is provided to couples at too late a point in their marital breakdown. By addressing the above-mentioned shortcomings and providing state support to couples at an earlier point in marital breakdown, the objectives of the Act stand a better chance of being achieved.

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