Gender Equality and Customary Marriage: Bargaining in the Shadow of Post-Apartheid Legal Pluralism

Abstract

This Report represents the culmination of a year-long project undertaken by the Crowley Program in International Human Rights at the Fordham Law School to study issues surrounding women and customary law marriages in South Africa in light of its international legal commitments. This Report presents the findings of this research effort. Following this introduction, Part I of this Report describes South Africa's international and domestic legal obligations regarding culture and gender equality, particularly with respect to marriage, divorce, and family formation. Part I then sketches two distinct approaches to the tension between customary law and gender equality, both of which may be found in the domestic law regulating the family. Part II evaluates the effectiveness of the two approaches with reference to data collected in the course of several hundred interviews with South African men and women in May and June 2006. Part II also offers tentative conclusions and suggestions for reform.