Duty to support and the dependant's claim: the struggle of women married in terms of customary and muslim law

Pienaar, J. M. (2006-02)

CITATION: Pienaar, J.M. 2006. Duty to support and the dependant's claim : the struggle of women married in terms of customary and Muslim law. Stellenbosch Law Review = Stellenbosch Regstydskrif 17(2):314-332.

The original publication is available at https://journals.co.za/content/journal/ju_slr


INTRODUCTION: Although the economic empowerment and independence of widows are generally dependent on the enforcement of their inheritance rights (and concomitant protection of property rights), a dependant’s successful claim for loss of support in the case of a wrongful death of a husband also contributes significantly to the widow’s ability to provide for herself and her children. In South Africa, under the Roman-Dutch common law, the duty to support has traditionally only been acknowledged in certain circumstances: if imbedded in a valid marriage or resulting from blood relationship. Until 2000, valid marriages only included civil marriages entered into in terms of the Marriage Act. Potentially polygynous marriages were deemed to be against public policy and consequently not recognised. The plight of widows from customary and Muslim marriages was obvious: since the marriage was not recognised as valid, the duty to support was not recognised either. These women, already vulnerable after the death of a spouse, were—irrespective of the duration of the marriage or the number of children born therefrom — without remedy. Widows from civil marriages were, however, able to successfully claim maintenance in similar circumstances.

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