Divorce Around the World

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What are the two forms of ranking in traditional proprietary consequences of marriage?

The two forms are simple ranking and complex ranking.

How are wives ranked in the simple ranking system?

Wives are ranked according to the date of their marriages.

What determines the wife's rank in the complex ranking system?

The date of the customary marriage determines the wife's rank.

What legislation amended the proprietary consequences of pre-RCMA polygamous marriages?

Recognition of Customary Marriages Amendment Act 1 of 2021 Signup and view all the answers

What must be done to regulate the future consequences of polygamous marriages?

A contract must be concluded Signup and view all the answers

In which instances can the matrimonial property regime be altered?

Pre-RCMA polygamous marriages and monogamous marriages concluded after 15 Nov 2000 Signup and view all the answers

Define conflict of laws and its purpose.

Conflict of laws refers to the method of choosing an appropriate rule to apply in the interests of justice. Its purpose is to arrive at a just order or finding. Signup and view all the answers

What are the two ways in which conflict of laws can take place?

Conflict of laws can take place between two legal systems in two different countries (private international law) or between two legal systems in one country due to diversity (private or internal conflict of laws). Signup and view all the answers

What is the meaning of 'lex fori', 'lex causae', and 'lex loci celebrationis'?

'Lex fori' refers to the law of the forum or the law of the court hearing and disposing of an action. 'Lex causae' refers to the law of the cause, where there is a conflict of laws, the law which has precedence to dispose of the action. 'Lex loci celebrationis' refers to the law of the place where the marriage is celebrated. Signup and view all the answers

What is the nature of conflict of laws and what conditions are necessary for its existence?

Conflict of laws relates to the methods used to resolve disputes arising from interactions between people subject to different legal systems. The conditions necessary for the existence of conflict of laws are the presence of social and commercial intercourse between people subject to different legal systems. Signup and view all the answers

How does customary law contribute to the avoidance of conflicts between different systems?

Customary law by nature avoids conflicts. If a conflict arises, it must be resolved using customary law. Conflicts under customary law are avoided through the integration of communities to one legal system, communities tending to keep to themselves during marriage and trade, and mutual respect for culture and way of life. Signup and view all the answers

What rules are applied to resolve conflicts between different systems of customary law?

When conflicts between different systems of customary law occur, rules are applied to determine the applicable system. The conflict of laws is likely to vary between these different systems of customary law. Signup and view all the answers

Explain the concept of tacit or implied agreement and how it is applied in court.

In the event of a tacit or implied agreement, the court will impute the terms of the agreement to the parties based on their prior conduct, cultural orientation, or the nature of the transaction. Signup and view all the answers

How does the court resolve conflicts between customary law and common law in South African law?

In the absence of any agreement between the parties, the court will resolve conflicts between customary law and common law by selecting the version of customary law that applies to the place where the defendant resides or works. If no prevailing version exists, the court will apply the defendant's version of customary law. Signup and view all the answers

What are the personal consequences of marriage under the Recognition of Customary Marriages Act (RCMA)?

Under RCMA, marriages concluded before its enactment are recognized as valid. Personal consequences of marriage include attainment of adulthood, which is determined by factors such as initiation and marriage, and the majority status and capacity of spouses, which depend on individual milestones like marriage and parenthood. Signup and view all the answers

What are the two versions of dissolution of marriage mentioned in the text?

strong version and weak version Signup and view all the answers

What is the purpose of the ukungena practice?

to raise an heir and continue the family bloodline Signup and view all the answers

Who can give a divorce order?

High Court, family court, or divorce court Signup and view all the answers

Explain the consequences of marriage in respect of children of the marriage in customary law.

Children are always attached to a family, illegitimacy is not recognized, and the child's affiliation is determined by the payment of lobolo. Signup and view all the answers

What is the position of wives in polygamous marriages concluded before 15 Nov 2000?

There are two types of marriages: simple marriage with two wives and complex marriage with more than two wives. Each wife has a separate house, and the husband must treat all wives equally. Signup and view all the answers

What is the effect of the Bill of Rights on the affiliation of children?

The Bill of Rights introduced the best interests of the child principle, which states that the best interests of the child are of paramount importance in all matters concerning a child. Lobolo no longer has an effect on parental rights. Signup and view all the answers

What factors does the court consider when determining the applicable version of customary law in a conflict of laws?

The court considers whether the parties agreed expressly or tacitly to a specific version of customary law. If there is an express agreement, the court implements the agreement. If there is no agreement, the court looks at the place of residence or work of the defendant and applies the version of customary law that applies to that place. Signup and view all the answers

Can conflicts of customary law arise within the same community? Provide an example.

Yes, conflicts of customary law can arise within the same community. For example, conflicts can arise between different versions of customary law within a patrilineal community during marriage negotiations. The version of customary law applicable to the bride's family group determines issues surrounding lobolo and the delivery of goods, while the version of customary law of the husband's family determines the consequences of the marriage and the status of the bride and her children. Signup and view all the answers

What does Section 1(3) of the Law of Evidence Amendment Act state regarding conflicts of laws?

Section 1(3) of the Law of Evidence Amendment Act provides a way to resolve conflicts of laws. Parties can agree to the applicable legal system, and the court must apply the decision of the parties. If no agreement is reached, the court looks at the place of residence or work of the defendant for a solution. If the defendant has multiple versions of customary law, the court looks at the first version for a solution. Signup and view all the answers

What are the consequences of a dissolution of a customary marriage by divorce?

A court has the same powers as those found in sections 7, 8, 9 and 10 of the Divorce Act and section 24(1) of the Matrimonial Property Act. Signup and view all the answers

What does Rule 43 of the Uniform Rules of Court allow spouses to apply for in customary marriages?

Maintenance pending litigation, interim custody or guardianship of any child, and/or a contribution towards costs. Signup and view all the answers

What does the customary law of succession deal with?

It deals with testate and intestate succession, and the manner in which a person's estate or eligible assets are inherited by their beneficiaries after their death. Signup and view all the answers