Good news for Women’s Day

WOMEN in polygamous marriages scored when the high court in Limpopo ruled that they had equal rights to those who entered civil unions.

With the country celebrating Women’s Day tomorrow, the court found that a section of the Recognition of Customary Marriages Act unjustifiably discriminated against women already in polygamous customary marriages. This was on the basis of gender, race and social origin.

This landmark ruling will not only empower the women who previously had no rights regarding the husband’s wealth and subsequently his estate, but it will also place their children on the same footing as the children of spouses who were married to each other.

This judgment relates to women who entered into polygamous customary marriages prior to the commencement of the legislation November 2000.

Acting Judge A Lamminga referred to this as “old” polygamous customary marriages.

Wives who entered into these “old” marriages had no claim on their husband’s assets – including property – which were acquired during the marriage.

The court heard that the women affected by the now invalid provisions were mostly older, poor and living in rural areas. They could not inherit and nor could their children. Women who later enteredcustomary marriages awere protected by law. So were the children.

The judge said the women who entered the “old” marriages were still being excluded from benefiting from their husband’s property and this left them and their children particularly vulnerable.

“Denying them equal protection perpetuates their vulnerability in in many respects. Women who have no rights in matrimonial property are vulnerable to eviction and may find acquiring property rights challenging,” he said.

In the case which sparked this judgment, a husband was married to four wives according to customary law and one according to civil law.

While all the wives and the husband had already died, their children challenged for their right to inherit from their dead father’s estate. He was a businessman and owned properties. Their parents were married before the legislation, when their mothers had no right to their husband’s property. This left these children in the cold, as only their siblings, whose mother was married in terms of civil law, were allowed to inherit.

Judge Lamminga said the provision which discriminated against these women should not be allowed to remain on the statute books.