Among many African communities polygamy is a very common traditional marriage practice. Polygamy is divided into polyandry and polygyny. Polyandry is defined as a form of polygamy in which a woman has more than one husband while polygyny is a form of polygamy in which a man has more than one wife. At the moment South African legislation only recognises polygynous customary marriages.
The Recognition of Customary Marriages Act 120 of 1998 states that customary marriage, is a marriage which is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”. This includes polygamous marriages, but only where a husband has more than one spouse. A Green Paper has recently been put forward in order to change this to include “a wife to legally have more than one husband”.
A Green Paper is a government policy discussion paper that details specific issues, and then points out possible courses of action in terms of policy and legislation. It articulates possible solutions that are yet to be adopted by government. The Green Paper is a precursor for a White Paper. The White Paper articulates a policy position of government that has been approved by Cabinet.
The green paper proposed three new marriage regimes that it maintained could bring about equality in marriage laws. The three proposed marriage regimes are:
- Inclusive customary and religious marriage regime;
- Religion and culture-neutral marriage regime;
- Gender neutral marriage regime.
The proposition of changing the customary marriage legislation to include a woman to marry more than one spouse or husband is an indication of a changing and adapting society. Women have equal rights to that of men and change in legislation is necessary to be an indication of real change.
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