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Decentralising marriage in a plural legal system

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by

elsje bonthuys

on 5 October 2016

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Transcript of Decentralising marriage in a plural legal system

Decentralising marriage in a plural legal system
Plural systems of marriage
DIFFERENT FORMS OF MARRIAGE
civil marriage - mainstream Christian and Jewish marriage
same sex marriage
customary marriage
Muslim marriage
Hindu marriage

same sex cohabitation
opposite sex cohabitation
CLASSIFICATION OF RELATIONSHIPS CENTRAL TO PLURALISM
Pluralism as a hierarchy of relationships
PLURALISM AS A COMPROMISE BETWEEN MALE ELITES

favouring marriage over non-married families
favouring civil marriage over indigenous and religious marriages
different rights for different relationships
Patchwork of patriarchies
Effects of legal rules
INTERACTION BETWEEN
- colonial & apartheid plural legal regime
- colonial & apartheid capitalistm
-pre-existing and developing family formations
Contradictory roles of families
INTERNAL AND EXTERNAL DOMESTIC STRUGGLES
on the one hand bulwark against effects of apartheid capitalism
on the other hand, oppression of women within families
Real South African families
- decline of marriage
- high percentage of people never marry
-multiple co-existing intimate relationships
- importance of non-sexual kinship
-inter-generational female households
- mixture of civil marriage and customary elements
What are the possible solutions?
Decentralising marriage as a legal concept
Giving legal recognition to kinship ties
Plural legal systems
legacy of colonialism and apartheid
plural family and succession laws
mixture of colonial and indigenous law
and law associated with migrant labourers

Women's positions mediated by race/class/culture/religion
Racially differentiated

Problems of plural marriage regime
Hierarchical - favouring marriage over kinship-based systems
Excluding families not based on marriage
Presupposes a choice between different forms of marriage
Legal landscape fails to reflect actual family formation
Excludes the majority of South Africans
Unified family law system
Single basic marriage law
Keeping & fixing pluralist system
2016 Onati Socio-L
Full transcript