Duty to support and the dependant's claim: the struggle of women married in terms of customary and muslim law
Date
2006-02
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Juta Law Publishing
Abstract
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.
Description
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
The original publication is available at https://journals.co.za/content/journal/ju_slr
Keywords
Inheritance and succession -- South Africa, Widows -- Legal status, laws, etc. -- South Africa, Widows -- Social conditions -- South Africa, Marriage (Islamic law) -- South Africa, Common law marriage -- South Africa, Rights of property -- South Africa, Marriage act 1998 -- South Africa
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.