Without the papers some women have no rights

When will the legislature begin to address the Byzantine structure of the legal regulation of intimate long term relationships in South Africa?

We now have at least three different marriage laws in place while the especially women in long term non-marital relationships or religious marriages find themselves in legal limbo.

In Volks v Robinson the Constitutional Court declined to recognize the claim from Ms Robinson for maintenance from the deceased estate in line with the relevant legislation because Ms Robinson was never legally married to the deceased, although she had shared his live for more than a decade.

Now the Eastern Cape Division of the High Court has found in the case of Kambule vs The Master and Others that individuals who got married in terms of customary law before the commencement of the Recognition of Customary Marriages Act but had never registered their marriage could claim maintenance from the deceased estate in similar circumstances.

This means that some South Africans would be entitled to maintenance from a deceased estate while others will not, despite the fact that neither group would be able to produce a marriage certificate.

There is a difference between the two cases.

The High Court relied on the wording of the relevant legislation to ensure that Ms Kambule would be able to claim maintenance as long as she could prove that a customary marriage had indeed been concluded. In the Volks case the evidence clearly showed that it was not the intention of the deceased to enter into a legal marriage with Ms Robinson.

However, if one looks at the nature of the two relationships, there is not much of a difference between the two. Yet one attracts legal protection (even without registration of the customary marriage) while the other one does not.

This seems to me unfair as it really helps to perpetuate the patriarchal status quo. The effect of the Volks case is to focus on the wishes of the deceased who did not want to get married, but in the process it marginalizes Ms Robinson who would have married the deceased if she was asked.

On the other hand, in the Kambule case what seems important is the nature of the relationship between the two people involved - we look at their lived reality, regardless of whether the relevant papers were signed or not. Although the judge might not have perceived it this way because he had the more flexible notion of customary marriage to work with, it signals that the piece of paper issued by the state does not and should not determine whether a relationship is worthy of legal protection.

Some would argue that this is a dangerous – even fascist – move because it will rob men of the freedom to choose not to take on the legal consequences of marriage.

My answer would be that in a patriarchal society it is irresponsible and dangerous to leave men to choose whether they want to take responsibility for their relationships or not. Men don’t have to be married before they can be forced to pay maintenance and no one says this infringes on the right of men to choose how they want to arrange their intimate relations.

The failure of the law to protect women who do not have the piece of paper that prove that they are in a registered marriage, is a failure of the law to respond to the structural inequalities in our society.