The Legal Resources Centre (LRC) and the Impact Litigation Unit of the Legal Aid Board (LAB) put forward a joint submission to the Department of Home Affairs concerning the 2009 Draft Recognition of Customary Marriages Bill on the 29th of May 2009.

With close to 35% of all households in South Africa being female headed and poverty rates in these households being close to 60%, it is necessary for legislation to secure and make rights accessible for women. However, in the past women in unregistered customary marriages were often granted little or no matrimonial property, as customary law does not grant in community of property.

The Recognition of Customary Marriages Act of 1998 ensured that even marriages that were customary and unregistered would be granted the same matrimonial property rights as those that were registered. However, this Act proved insufficient, as it only did so for customary marriages after 2000. Those married prior to this date were unable to access these property rights, leaving many women with nothing upon divorce and no inheritance following the death of their spouse.

Moreover, even with the recognition of customary unions post 2000, those who did not seek official registration on their own sometimes were unable to prove the existence of their marriage. Lack of understanding of the registration process and lack of access to registration meant that in order to access matrimonial property, a spouse had to go through a lengthy, expensive legal process. Those without the time, the money, or the support needed to prove their marriage would not be granted matrimonial property.
In 2009, the Department of Home Affairs developed an amended version of the Recognition of Customary Marriages Bill. These alterations would establish that in community of property applies to all customary marriages, including those prior to 2000.

Yet, even if all customary marriages are technically recognized, proving the existence of unregistered marriages is nonetheless complicated and costly. In order to more effectively protect women in customary marriages, the registration process must become easier. As the LRC and the LAB submission pointed out, the draft bill would actually make the registration process more difficult for women: firstly, according to the new version, both spouses would need to complete the registration together. Thus, the decision over a wife's entitlement is left to the discretion of her husband, a blatant violation of her rights as a citizen and woman.

Another weakness indicated in the submission is that the new draft forbids the registration of a customary marriage when one spouse is deceased. Such a law would have a profoundly negative effect on surviving widows who, in the event of the death of their husbands, will have no way to prove their marriage. Thus if the widow is not supported or welcomed by her late husband's family, she will be left with no guaranteed access to what property should be rightfully hers.

While these sections of the new draft clearly need alteration, the submission also points out that what may be most effective is that customary marriages should automatically be registered. The submission reads, "Parties married in terms of Hindu rites of Muslim law are issued with marriage certificates...why should parties in a customary marriage be treated differently?"

While the Department of Home Affairs may have a long way to go before establishing the infrastructure needed to guarantee the registration of all customary marriages, the suggestions made by the LRC and LAB will, in the mean time, help protect women married according to custom from exploitation by their husbands or in-laws.