workshop page 1 of 43 - statistics south africa...towards improving the registration of marriages...

Towards Improving the Registration of Marriages and Divorces in South Africa

Proceedings from a National Workshop

Edited for Stats SA by Bah, S. and Rama, S.

Published by Statistics South Africa

Private Bag X44

Pretoria

0001

ISBN 0-621-29829-8

Stats SA, 1999

Tele: (012) 310 8299 E-mail: [email protected]

Edited for Stats SA by:

Dr. Sulaiman Bah Deputy Director of Sub-directorate of Vital Statistics, Population Projections, Tourism and Migration

Ms. Sharmla Rama Survey Statistician, Sub-directorate of Vital Statistics, Population Projections, Tourism and Migration

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01/04/04http://www.statssa.gov.za/Publications/Marrigaes%20and%20dovorce%20proceedings/full%20text.htm...

The contents of this the workshop proceedings are the responsibility of the contributors, and do not necessarily reflect the policies or views of Statistics South Africa (Stats SA).

Material from this publication may be applied, processed or reproduced, provided the contributors are acknowledged.

CONTENTS

PART ONE: BACKGROUND PAPERS

1.The Customary Marriages Act: Background and Rationale

2. The Improvement of Marriages and Divorces Statistics in South Africa: Relevance, Registration Issues and Challenges

3. How Can Statistics on Marriages and Divorces Help Us to Understand the State of the South African Family and Household

4. Divorce Statistics and Implications for Welfare Planning

DISCUSSION (PART ONE)

PART TWO: Marriage and Divorce Registration Forms and Process

5. The Process of Registration of Marriages and Divorces in South Africa: Highlights of Changes in the 1990’s

6. Contents of the Marriages Certificates and the Divorce Forms and Coding Practices at Statistics South Africa

7. Computer Systems for Marriage and Divorces: Past Practices and Future Directions

DISCUSSION (PART TWO)

PART THREE: PANEL DISCUSSIONS

8. The Role of Various Stakeholders in the Improvement of Marriages and Divorces Statistics

PART FOUR: WORK GROUP REPORT BACK

Group Set-up

Group Report Back

DISCUSSION (PART FOUR)

RECOMMENDATIONS

Introduction

Recommendations

APPENDICES

APPENDIX 1

Summary of Opening Address

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APPENDIX 2

APPENDIX 3

PARTICIPANTS OF THE WORKSHOP

PART ONE: BACKGROUND PAPERS

The background papers are revised versions of the papers presented at the workshop.

The Customary Marriages Act: Background and Rationale

Professor T. Nhlapo

South African Law Commission

To call this a paper is a bit optimistic. It is a chat about issues that I am glad are on the table today because in fact it is quite timely that this is so. One of the first tasks that we set ourselves at the South African Law Commission was to right a glaring wrong in our history, which was the failure of South African law to recognise any marriage other than the ‘Western Christian marriage’. It was easier to start with the customary marriages even though on the project agendas of the commission, the need to recognise religious marriages: Islamic marriages, Hindu marriages and other forms of religious marriages has long been acknowledged.

It was easier to start with customary marriages because for one reason, the research had already been done or at least much of it. You might recall that as far back as 1985, there was a report of the South African Law Commission called the Marriages and Customary Unions of Black Persons, under the Harmonisation of Indigenous Law and Common Law project. That presented a useful starting point and between 1996 and November last year, when the Recognition of Customary Marriages Act was passed by Parliament, we had managed to consult widely on the need for recognising customary marriages and the form that such recognition ought to take.

What really is important, I guess, to highlight for a gathering such as this, is that if you look at the Act: has been assented to by the President, but it has no commencement date on it as yet and that is because people in this room, I trust, and others are still working on the regulations that will accompany the Act. There is going to be an important need for regulations because like any other form of marriage, one is going to have to find registration points around the country and one has to set up the criteria for registering officers around the country.

And I might tell you that during the negotiations and the consultations over this legislation, we kept going to and fro about who would be registering officers and so on. One of the suggestions that was made but did not receive our full support, was the idea of marriage officers. That was felt, to be so far removed from how African people actually achieve the alliance between two families that they call marriage, that it could not really be adopted. A marriage officer is a third person, who represents the state and actually causes the two parties to get married. In African custom that is entirely different. The parties negotiate the marriage themselves.

So we settled for the concept of a registering officer and I guess for the purposes of this workshop those are the officers who shall be important from a statistical point of view or a statistics collection point of view. There was also difficulty as to who would be registering officers. If you looked at the Act, it now simply appears in neutral language "a registering officer means any person appointed as a registering officer, for purpose if this act, by the minister".

It appears that blandly because we removed the magistrate from the definition. The original idea was to have magistrates register, but there has been a move in the magistracy, as some of you particularly from the Department of Justice would know, towards an independent magistracy. And as part of that process, the magistracy has been dropping all non-judicial functions. We were reliably told that any attempt to burden magistrates with further non-judicial duties would not meet with their approval.

So we took them out. But also tried to put some language in the statute that gives a strong hint to the Minister

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of Home Affairs, who is going to appoint registering officers, to consider appointing traditional leaders and various other people in traditional structures for this kind of registration. There is thus a story right there as to who is or is not going to be a registering officer and that is still in the process of being finalised in regulations.

You’ll note also in the act that these regulations are supposed to be developed by the Department of Justice and the Department of Home Affairs. It is thus going to take a bit more time than if it was a one-department obligation. There’s going to have to be consultation between the two departments. Apart from talking about matters of registration and the statistics collection to which such a registration would point, one also needs to point to some issues raised by the Recognition of Customary Marriages Act because those may have an impact on some of the discussions today.

The question of registration is itself framed in encouraging language but not punitive language, so that failure to register is not made such a sanction that it invalidates the marriage. That may be a problem, but if you read our report, you will discover that we agonised over this for quite a long time. There was no way we could make it compulsory or so compulsory that failure to register would invalidate the marriage. We thought we want to keep as many people within the net of valid marriages than to keep them out. And to invalidate marriages because they are not registered, it would have excluded a larger group than would have been included. This is simply because traditionally, people don’t consider registration of their marriages to be a high priority.

Research from neighbouring countries, I think here of Swaziland and Namibia and Lesotho, comes to mind. Lesotho has had a registration statute, as far back I think as 1889, for people to register customary marriages, yet they do not. They believe that a traditional African marriage is a matter that is notoriously public from the time you start to do the arrangements, that nobody ever goes to ask for a woman’s hand in marriage alone, it is always a large group. There is thus no shortage of witnesses who can actually testify to the fact that they were there, even in the most intimate negotiations. In any case, in traditional law a marriage is constituted by an agreement between the parties and the result of the negotiations. It is not constituted by the registration as some other kinds of marriage might be. That is one point to raise.

The other is property. We had try to and knit together a coalition between basically quite disparate interest groups: Traditional leaders as the custodians of custom on the one hand and women’s groups as people who are worried about what the recognition of these marriages will for women. I suspect one of the reasons that we managed to get the statute through was because despite its failure to outlaw polygamy, the Act promised or brought into being property arrangement that met with a great deal of approval particularly from women’s groups. And one of the things we had to do was to organise for community of property to be the automatic regime in these marriages. We also had to arrange for people to be able change over from the old arrangement to the new one once the statute comes into being. And in particular we had to be creative in what has now appeared here as Section 7 which is the whole story relating to polygamy and what one ought to do when one has a marriage to one woman and wants to marry yet another.

Basically the approach of the Commission was to have the property regime dissolved so that you can than go to court for permission to register a new one that takes into account the expanded family you are forming. That is going to need a lot of work on registering these property regimes. The only help we could offer was to meet people half way by having the court order itself transmitted to the Deed’s Registry with no further cost to the parties. But it does seem to me that the consequential amendments to the Deed’s Registry Act that one finds in Section 12 do point the way to a further avenue for statistical collection. But apart from that I will stop here and perhaps pick up further points in the discussion.

I will simply conclude with yet another provision in the statute: the one insisting that divorce be granted by a court of law, which we hope will be the family court, but again it will be a bit slow at the start until that court is up and running. That does mean at least as far as the collection of statistics is concerned there will be a court order accompanying a divorce which is an important change from what you may call pure customary law where the divorce was itself as private a matter between the families as was the entering into the marriage.

2. The Improvement of Marriages and Divorces Statistics in South Africa: Relevance, Registration Issues and Challenges

Dr. Sulaiman Bah

Statistics South Africa

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Introduction

If we want to improve on the coverage of marriages and divorces in South Africa, it is no secret that the population sub-group, which must be targeted, is the Africans/blacks who have not had any schooling and reside in non-urban areas. According to the 1996 census, this population sub-group numbered 2,75 million or 6,8% of the total population. This population sub-group is statistically disadvantaged for several reasons. First, this is the segment of the population that is most likely to fail to register their marriages or divorces. Second, this is the population sub-group that is most likely to solemnise their marriages through customary unions.

The older legislation that was in place, together with the past practice adopted here at Statistics South Africa, ensured that Africans/blacks, till recently, was barely visible to the vital registration system. Furthermore, all those marriages that were solemnised only according to customary rites remained invisible to the system. Until 1990, the marriage data that was processed and published by Statistics South Africa were those of whites, Indians/Asians and coloureds. From 1991 till date, the data received from the Department of Home Affairs did not make any distinction between the population groups. As such, during the 1990s, Statistics South Africa could not publish information on marriages among Africans/blacks even if it wanted to.

In the case of divorce statistics, Statistics South Africa implements the divorce forms (Form 07-04). While the earlier forms only provided for three population groups (whites, Indians/Asians and coloureds), the option for self-identification among divorcing African/black couples was later added on the forms about 1991. Information on divorce among Africans/blacks was not available from 1970 to 1993. It was only in the 1994 marriages and divorces publication that divorces among Africans/blacks first came to light.

In this paper, we wish to address the issue of the improvement of statistics on marriages and divorce particularly among those couples whose form of marriage is not recognised as being legal. Prior to the enactment of the customary marriages Act, marriages solemnised according to customary rites used to belong this category. There are still other forms of marriages, which fall under this category.

The paper starts by outlining the relevance of statistics on marriages and divorces, drawing from published literature. This is followed by a discussion of registration issues and the challenges to be faced in trying to improve the registration of marriages and divorces. The paper ends with a discussion followed by a conclusion.

Relevance

In a paper published in a leading demography journal, a former president of the Population Association of America (PAA), Linda Waite posed the following simple question, "Does marriage matter?" In the paper she went on to present results from national surveys conducted in the United States and from other published reports. Some of her findings and the findings of others that she reported upon are as follows:

Married men and women exhibit lower levels of negative health behaviours than the unmarried does.

Based on the Panel Study on Income Dynamics, it was found that for both men and women, the married showed the highest probability of survival between age 48 and 65.

Based on the Health and Retirement Survey, it was found that the per capita wealth of married couple households was substantially higher than those of other households.

Dropout rate from schools showed that children from one-parent families drop out from schools twice as much as children from two-parent families.

Based on the National Longitudinal Survey on Youth, it was found that marriages increased men’s wages (as marriage makes men more productive at work and it increases their incentive to perform well at work among other reasons).

In answer to the question posed, Linda Waite concludes that marriage does matter as it provides important and substantial benefits to couples (Waite, 1995).

Other research from the United States show that children whose parents have divorced or have separated are

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more likely to report acute and chronic health problems than children living with both biological parent. The risk of ill health was found to increase immediately following parents marital separation (Mouldon, 1990).

As another example, a longitudinal study of family income and poverty rates in the United States, between 1983 and 1986, found that, among children whose father left the family during the period of study, family income fell by 37 percent in the immediate aftermath of the separation and poverty rates among children rose from 19 to 39 percent (Bianchi and McArthur, 1991). Other studies also confirm that the welfare of children born to unmarried mothers is substantially compromised, if not by the single parenthood status of their mother, then by her socio-economic circumstances (Lloyd and Duffy, 1995).

In summary, information on marriages and divorces is very important in learning about:

the socio-economic status of households (as an aspect of the ‘feminisation’ of poverty);

behavioural determinants of health among adults;

the life circumstances of children and youths.

Registration issues

While surveys and other administrative data sources could provide data on marriages and divorces, by far the most important sources are censuses and the vital registration system. The census gives information on the marital status of all individuals who are older than a certain minimum age. This is stock information, which can allow us to do several analyses on families and households. From the point of view of the law, certificates of marriages and of divorces are important as they have implications for; inheritance, alimony and child maintenance, nationality and citizenship and (in some countries) for conferring upon a child his/her legitimacy status. For the purpose of meeting these and other legal obligations, states set up the civil registration system. Vital statistics (comprising births, deaths, marriages and divorces) come as by-products of the civil registration system. Vital statistics is one of the best sources of flow information such as, first marriages and remarriages. The data on marriages and divorces, obtained from vital statistics could be found useful in welfare planning. The statistics are of importance to analysts and researchers working in the areas of fertility and family demography.

Complete statistics on marriages and divorces would help us to provide answers to the following three fundamental questions:

Is the marriage rate increasing or decreasing?

Is the divorce rate increasing or decreasing?

Is the number of children from divorced couples increasing or decreasing?

Having obtained answers to these questions, researchers could then proceed with further investigations on the factors underlying the observed trend and their implications. In the case of South Africa, these questions need to be further qualified before they could be answered. The reason for this is that there is a marked differential in completeness in all of vital statistics. Completeness is highest for whites followed by Indians/Asians and coloureds and is least among Africans/blacks. If the data is aggregated over all population groups, as has been the case since 1991, the overall completeness would be low.

The reported number of marriages and divorces reflect the reality only to the extent to which they are registered. The registration of these events depend on a combination of factors including the following:

the individuals’ perception of marriage or divorce

The definition of legal unions according to the relevant Acts pertaining to marriages and divorces.

Individuals’ perception of marriage or divorce

In making a decision to get married, couples operates within their religious/cultural world view with or without

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thoughts given to issues pertaining to legal rights and obligations. When couples are solely concerned about self-fulfilment, the registration of a marriage or a divorce plays a secondary role. The couples sense of fulfilment would be satisfied as long as, in their assessment, the marriage was legal (according to religious or cultural norms), the state’s recognition of its legality was immaterial.

This fact of life is acknowledged in the Marriages Act, No. 25 of 1961 in section 11 dealing with unauthorised solemnisation of marriage ceremonies forbidden. Subsection 3 reads as follows:

‘Nothing in sub-section (2) contained shall apply to any marriage ceremony solemnised in accordance with the rites or formulation of any religion, if such ceremony does not purport to effect a valid marriage’.

In the past, this was the part of the reasoning that drove couples to solemnise their marriages only according to customary rites. At present, this reasoning is still driving couples to solemnise their marriages through only religious ceremonies.

One would expect that with as couples become aware of the civil rights they would be entitled to once the marriage is recognised by the government as legal union, they would then strive to make it legal according the laws set by the Government. The state has vested interested in ensuring that a union or disunion is legal as it confers or withholds rights of couples based upon recognition of such legality.

Definition of ‘legal’ union or disunion

The definitions of a marriage and of a divorce are quite unambiguous. According to the United Nations (1991),

Marriages is defined as follows:

‘Marriage is the act, ceremony or process by which the legal relationship of husband and wife is constituted. The legality of the union may be established by civil, religious or other means as recognised by the laws of each country’.

Divorce is defined as follows:

‘Divorce is a final dissolution of a marriage that is, the separation of husband and wife which confers on the parties right to remarriage under civil, religious and/or other provisions, according to the laws of each country’.

The problems arise in the definition of ‘legality’. In most developed countries, only two forms of marriage exist-civil marriage and religious marriage. The definition of, which of these forms of marriage is legal, varies from country to country. In Western and Eastern Europe, as at 1995, only civil marriage was recognised by the law while in Northern and Southern Europe, civil marriage was in competition with religious marriage. As a specific example of the latter case, civil marriage were only introduced in Greece in 1982. However, in Greece, there is a general lack of interest in this form of marriage. As a result, between 1983 and 1987, the official statistical year-book gave the annual total number of civil marriages simply in the form of a note to a table while in the 1989 year-book, the figure was omitted altogether (Dittgen, 1995).

In many parts of Africa, in addition to the two forms of marriage mentioned, there is third form of marriage, namely, customary marriage. Among the three forms, civil marriages were given preference over all other types of marriages. This resulted in a dualism. Couples who got married under customary or religious ceremonies would further perform a civil marriage in order to ‘legalise’ the marriage. In a rare case where such dualism has been overcome, Tanzania promulgated an act in 1971 in which all three forms of marriages were integrated into a single code (South African Law Commission, 1997).

In South Africa, the forms of marriages that were recognised, prior to the enactment of the customary marriage bill, were civil and religious marriages. To some extent, the South African Marriage Act (Act 25 of 1961) was very accommodating with regards the status of civil and religious marriages. According to the Act, ministers of religion could be marriage officers. According to Section 3 sub-section 1,

‘The Minister and any officer in the public service authorised thereto by him may designate any minister of religion of, or any person holding a responsible position in, any religious denomination or organisation to be, so long as he is such a minister or occupies such position, a

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marriage officer for the purpose of solemnising marriages according to Christian, Jewish or Mohammedan rites or the rites of any Indian religion.’

In section 30, subsection 2, the Act reads,

‘Subject to the provision of subsection (1), a marriage officer, if he is a minister of religion or a person holding a responsible position in a religious denomination or organisation, may in solemnising a marriage follow the rites usually observed by his religious denomination or organisation’.

Under the dual system practised in the past, if a couple solemnises a marriage according an unrecognised form and then proceed to solemnise it again as a civil marriage, the marriage becomes a civil one. Customary marriages have now escaped this treatment while Islamic marriages still face it. In this regard, South African Law Commission (1997) cites a case (Ryland versus Edros) wherein the position was held that failure to recognise Muslim marriages would violate the right to equality between cultural and religious groups.

Challenges

In order to improve on the registration of marriages and divorces the following challenges must be addressed:

Ensuring that couples are informed about the legality of customary marriages and are sufficiently motivated to want to register the marriages.

The Recognition of Customary Marriages Act largely puts the onus of registering the marriage upon the couple. Section 4(1) reads:

‘The spouses of a customary marriage have a duty to ensure that their marriage is registered.’

Experience with birth and death registration show that in many cases, parents (in the case of births) or next of kin (in the case of deaths) are not much aware of the requirements for registration and the procedures to follow in getting an event registered.

The re-inclusion of the population group variable in the marriage form.

As from 1991, no distinction was made between the population groups. This was the case in the births and deaths statistics collected by DHA. Now that the population group variable has been re-introduced in the new death notification forms, we suggest that the same be applied to the statistics on marriages. With the breakdown of marriages according to population group, one would be able to tell whether marriage rates are increasing or decreasing among whites, Indians/Asians and coloureds. For Africans/blacks, it would not be easy to distinguish genuine trends in marriage rates from trends reflecting improvement in coverage.

The filling-in of the population group variable in the divorce form.

For similar reasons stated above, we would also need the breakdown of divorce statistics according to population group. This has been available for several decades for the three population groups of whites, Indians/Asians and coloured and since 1994 for Africans/blacks. However a worrying development is that couples are increasingly failing to self-identify their population groups. We would also want to see the rate of change in the divorce rates of among the different population groups. However to respect the rights of individuals, we accept whatever way they self-identity themselves. As such, we have modified our computer programs and our reports to reflect ‘unspecified’ population group as well as couples from different population groups (mixed marriages) Our 1996 data show that the category of ‘unspecified’ population group comprised 11,7% of all registered divorces.

The recognition of other religious marriages

One form of religious marriage that stands out is Islamic marriage. One feature that Islamic marriages share with customary marriages is that of polygamy. This feature was one of the main stumbling blocks in the extending recognition to customary marriages. With the recognition of customary marriages, this blockage has apparently been removed. As such, we propose that a similar status be granted to Islamic marriages.

5. Deliberate non-registration of customary marriages.

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There is possibility of deliberate failure on the part of couples to register the customary marriage. This would possibly be done in an effort to circumvent legal implications of divorce. However, the Recognition of Customary Marriages Act reduce such chances Section 4, sub-section 9 states:

‘Failure to register a customary marriage does not affect the validity of that marriage’.

6. Guarding against false alarms (artefact of data)

In the period when the level of coverage is rising. When does a decline signify actual decline? This situation was faced in the comparing the statistics of divorces among Africans/Blacks over the period 1994 to 1996.

Discussion

In the developed countries, data on marriages and divorces have shown a distinctive trend over the past few decades. Data compiled by Monnier and Guiber-Lantoine (1997) show the developed countries experienced almost universal decline in first marriage rates over the period 1970-1996. This decline is accompanied by increase in divorce rates and increase in the number of extra-marital births. In the case of South Africa, one is able to study trends in first marriage rates of whites, coloureds, Indians/Asians only up to 1991 after which there is a gap in the data. For Africans/blacks, one has no knowledge about their first marriage rates. Hence for South Africa as a whole, one has no idea about the trend in the first marriage rates. This lack of knowledge hampers our knowledge about the dynamics taking place in the South African family.

The enactment of the customary marriage act is a first step towards getting a fuller picture of marriages statistics among a large segment of the population which had hitherto been excluded from official statistics. In order to increase on the coverage of marriages, thoughts should be given on recognising other forms of marriage, such as Islamic marriages. In addition, the Marriages Act should be amended to register the population group of the couples getting married.

Findings on the social impact of labour migration allude to high marital instability among labour migrants. It would be possible to explore further these hypotheses through the use of record-linkage. Using probabilistic record linkage based on a few identifying variables, marriage and divorce statistics could be linked to the census to produce a rich data set for carrying out such investigations.

Conclusion

The Recognition of Customary Marriages Act has the potential of increasing the coverage of marriages and divorces statistics several folds. Analysis of the trend in marriage and divorce rates over time help us to understand the social dynamics taking place in South Africa. However, from the experience in the statistics on births and deaths, we know that legislation alone is necessary but not sufficient for the actual registration of events. Mechanisms have to be put in place to strengthen registration of marriages. For religions whose formula of solemnisation is recognised, attention must be put on those cases were ministers of religion solemnise marriages according to their religious rites but do not register those marriages simultaneously. For religions whose formula of solemnisation are still not recognised, the South African Law Commission should consider working towards their recognition following similar process as was done for customary marriages. Through neglect of such recognition, many marriages slip through the system and in the long run they serve against the interests of women and children.

References

Bianchi, S. and McArthur, E. (1991). Family disruption and economic hardship: The short-run picture of children. Current Population Reports: Household Economic Studies Series P-70, no 23. Washington D.C. United States Department of Commerce.

Dittgen, A. (1994). The form of marriage in Europe: Civil ceremony, religious Ceremony, Survey and trends. Population: An English Selection, 7:95-124

Lloyd, C. and Duffy, N. (1995). Familial risk factors for children. In: Families in Focus: New perspectives on mothers, fathers and children. Edited by J. Bruce et al. Population Council, New York.

Mouldon, J. (1990). The effect of marital disruption on children’s health. Demography 27(3): 431-446.

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South African Law Commission (1997). The harmonisation of the common law and the indigenous law. Discussion paper 74: Customary Marriages, Pretoria.

United Nations (1991). Handbook of Vital Statistics Systems and Methods. Volume 1: Legal, organizational and technical aspect. United Nations, New York.

Waite, L. (1995). Does marriage matter? Demography 32,4:483-507

Acts

Divorce Act (No. 70 of 1979)

Marriage Act (No. 25 of 1961)

Recognition of Customary Marriages Act (No. 120 of 1998)

3. How Can Statistics on Marriages and Divorces Help Us to Understand the State of the South African Family and Household

Debbie Budlender

Statistics South Africa and

Community Agency for Social Enquiry

What we’re mainly talking about today is the statistics that come from the registration system. When you get married or you get divorced, you fill in a form and that finds its way here to Statistics SA, and then gets published. There is another source of information that we have relating to the general patterns of the population – who is married, who is divorced, and who is in various other marital situations. That is what I will be presenting on.

The two sources that I have drawn on are the Census of 1996 and the October Household Survey (OHS). In terms of the latter, I have the 1995 survey but others would have shown similar patterns. In the OHS, 30 000 households around the country are visited and details taken about the characteristics of everybody in that household. The results are then weighted up so that we can talk about the population as a whole.

I am going to concentrate on marriage and talk a little bit about children, but not about divorce, because of the limited time. My topic was meant to be households and families. Now that topic reflects how statisticians think. Other people may think what’s the difference between households and families. "Households" is what we, as statisticians, base our interviews on. Households are people who live together and "share a common pot". It is a consumption unit. It is not necessarily the same as the family, which is could, perhaps, be more of a biological entity. In fact, in Australia they define family terribly strictly - the family can only be two generations, in other words parents and child. So that if you have grandparents, parents and child living together, that is two families.

I don’t think we have really got into the definition of what is family and what is not family, but what I am going to try and show here with these statistics is that family, or household situation, is a very diverse and complex thing. We have not got a nice, nuclear family situation in South Africa. In fact, marriage in some ways can be considered almost an exception. That is putting it too strongly, but maybe gets back to Sulaiman’s question at the beginning of this workshop as to what the relevance of marriage is, why are we focusing on it.

For the first overhead (Marriage by population group – women), I have taken only people 18 years and above. That does not mean that people under 18 do not get married. However, it takes out the complication of some population groups having more people who are younger and if you include children you obviously skew the statistics. In the graph, the black is the October Household Survey and the white is from the census. Rather nicely for us, it shows that the two sources more or less match except for whites. The graph shows the percentage of women in each population group that is married. You can see that it is much higher for white women than Indian, Coloured and African. It is quite different across the population groups. There is quite a big difference between 39% and 68%.

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I have done the graph only for women. In virtually all the surveys that I have seen, when you compare men and women, a higher proportion of women claim to be married than men. One could say that was about polygamy. I don’t believe that polygamy is that extensive in South Africa that polygamy explains the theory. My own theory is that it could be sociological or different perceptions about what constitutes marriage. Especially when the couple is separated, the man is in the town and perhaps he is interested in other relationships, the woman is in the rural areas. It is also about the social importance and status that marriage accords a man and a woman. So I suspect that would explain the difference. Here I have just taken the women’s statistics to make it simpler. This is currently married. It excludes those who are divorced. It excludes those living together.

This overhead (traditional marriage by population group – women) says let’s look only at those people who are married, and see what proportion claimed to be married by traditional or customary marriage. As one would expect, the proportion is much higher in the African group and the Indian group and slightly higher in the coloured group, which would reflect Muslim marriages, I suspect. And again the Census and October Household Survey match except in the case of the Indian group. This I am explaining by the fact that it was asked slightly differently in the two surveys. The difference relates to what happens with religious marriage. In the Census it said civil or religious as the first category and traditional or customary, as the other one. In the October Household Survey, religious does not get mentioned so it’s customary, traditional or civil. So that raises the question of how one perceives a Muslim marriage if they don’t specify a category for religious.

This overhead (traditional marriage by population group and age – women) is the percentage that traditional marriages constitute of all those who are married in the given age group. So again it looks only at those who are married and what proportion say that they are married by traditional marriage rather that civil marriage. What the graph suggests is that there is a movement towards civil marriages and away from traditional marriages. Among African women aged 41 and above, 26% are saying that they are married by traditional marriage compared to only 13% in the younger age group. The gaps are not that big for the other population groups.

Then we come to the question that you might be married, but is your spouse with you. And what one finds in this graph (presence of spouse) – and here I have women and men for both cases – is that when you are in a customary marriage, you are less likely to be living in the same household as your spouse is. This is about migrant labour.

In terms of the customary, religious, civil distinction, I have taken one graph (marriage ceremony) from a very small survey that Community Agency for Social Enquiry did last year, where we gave three options. We said: Are you married by civil? And that was explained as by a magistrate. Are you married by customary or are you married by a religious ceremony? We also allowed for people to claim that they were married in terms of more than one. In fact, 11% of those people who were married said that they were in more than one category. But I think it is also quite interesting how this phrasing shifts down the civil quite significantly. In other words a lot of people are getting married in churches and then there is no magistrate. It is still a civil marriage, but it is a religious marriage in their eyes.

Now I am shifting from a moment from marriage. This graph (location of young children by population group) is shifting to children because, to some extent at least, marriage is about having children although my later graph will question the extent to which marriage is about having children or having children is about marriage. But the graph is telling us, if we look at children under seven years of age in this country, how many are living with their father and their mother, how many are only living with their mother, how many are living only with their father and how many are with no parents at all. If you look at the white group, the majority are living with both parents. If you look at the African group, 40% are living with both parents, 40% or a bit more than that are living only with their mother, about 2% are living only with their father, and over 10% are living with neither parent. The indications are that quite a substantial proportion of the last group are living with grannies, but others might be living with other people. Our statistics at present don’t allow us to analyse that completely. These statistics are not saying anything about the marital status of the parents. Rather they are saying something about how we should think of family or household situations.

We can then look at those children under seven years who are living with their mothers – that would be those who are living with their mother and father as well as those who are living with mother alone. This overhead (mothers of young children) shows the percentages of the mothers who are married. Among African mothers, only half are married. If we look at the percentage of mothers who are married where the father is there as well, or at least the spouse of the mother, which might not be the same thing as the father, the percentage falls to 40%. This is where I start saying, let’s think carefully about whether marriage and having children and what we conceive as a nuclear family are the norm in South Africa. And I use the word "norm" here not in any normative sense of what should be, but rather in terms of what is common.

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The last graph (married mothers - % traditional marriage) shows, quite interestingly, that even with young children under seven years you still have a high proportion of mothers married by traditional marriage, at least among the African group. In these statistics I haven’t looked at the other population groups but what would be interesting is looking at those classified as living together. The complication is that I am not sure about the statistics that we get there because I think people don’t always understand what we mean when we say about living together. So the statistics are questionable, but if one is considering marriage and all the different sorts of arrangements it is something we have to think about.

OVERHEADS FROM PRESENTATION

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4. Divorce Statistics and Implications for Welfare Planning

Dr. Maria Mabetoa

Department of Welfare

It is an opportune time for the Department of Welfare to participate in this discussion as we are restructuring and transforming. In the Department of Welfare we want to focus more on service delivery and to ensure that services go to the right people. And we definitely cannot do without statistics, research findings and so on. I would like to say that the statistics that Debbie just presented shows who really needs welfare services: mostly, it is those children who live in the rural areas.

In one of the studies that I was involved in, 85% of the children did not live with either of the parents. Grandparents, sisters, brothers, aunts and so on took them care of. In some cases the parents were divorced. And there is a whole struggle and conflict between the families as to who should take care of the children. You find those children were removed from their biological parents or mother or father and staying with their grandparents because there was a dispute between the two parents as to where the children should go. I feel it is very important for us to take heed when we develop policy, legislation, programs, social security and anti-poverty programs and who should be our target group, especially with regard to children.

At the moment as shown, we know that 50% of the women have children outside marriage. These are single parent families. In the past the statistics did not tell us how many of those women have been married customarily and are now single. So that figure is increasing. It seems that there are more women who are single because they were married and or divorced and this was never recorded. So when we develop services we have to take that into consideration and also when we transform welfare services we have to take in consideration the children, the women, the fathers as we don’t want to leave the man outside this.

Like today within the discussions we were getting the information on how many families are involved, how many children are involved, what services should be provided to children and what provisions should be made with regard to children who needs assistance during divorce. We have family counsellors attached to the Offices of the Family Advocate but we don’t have enough throughout the country. In the rural areas we don’t have those services. In fact in the rural towns we have pilot projects at the moment but it’s not widespread. So when we hear about the impact of divorce on the children that is, they are affected, their education is affected or they don’t settle very well at home and at school, it means that lot of intervention needs to be done.

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I just want to go a little bit about how Welfare delivers its services or how it intends to deliver it from April onwards especially in the section of the welfare services. That we are developmental in approach and in that way we focus on strengths and rather than on pathology. We will focus on children of divorced parents but I will show you on my transparency there are many other areas that we should consider like those children could be HIV positive or affected by AIDS, they could be having disabilities and so on. All these impact on the effects of divorce on the children and their families.

This is the developmental approach adapted from our white paper, on the Welfare white paper, we focus on strengths rather than on pathology. We are no longer going to focus on like abused children, children who suffer from trauma because of divorce and so on. Because as I will show you later there are many street children there are many children who are affected by a number of things. So it is better if we don’t categorise children or families or people with problems but if we provide service that will address all those needs and problems. We build competencies we believe that people have got strength and we can build competencies and help people to cope with whatever problems they have.

We take the context into consideration like there are certain approaches, which you cannot just apply in certain areas, like with extended families system, especially in situation of customary marriages. The divorce situation there is different from in a nuclear family where there are only two people and children involved but where there is a whole extended family with fifty people or more involved. There is a lot of work that needs to be done in order for people to come to an agreement as to who will have custody of the children, who will look after the children afterwards. Because it is not one person that looks after the child it’s the whole family.

Multidisciplinary teams and intersectorial collaborations: In SA we have been working too much in boxes. Like with the statutory process in the children’s court it’s better if the different departments know who is doing what and we all synchronise our services to families, to children, to youth and whoever. This has been piloted in the protocol for child abuse and neglect also in the justice system as well, integrated justice system. And then economic independence, through the anti poverty programs that the government has allocated in the department, last year it was R300 million towards poverty alleviation and Department of Welfare were allocated R203 million. We are developing programs for helping people to be economic independent through building competencies and capacity.

Family refers to parents, extended family, kinship group or the community. If you worked in the rural areas you know who the family is. The neighbour is part of the family. It becomes very, very fluid when you work with real communities but if you work in the urban areas you have the mother and father and children as the family. Those who practise social work know that if there is a family dispute of something you start with the extended family, before you can carry on with the discussions forward to court level. So that is how we used to transform.

Our new framework for services. In the department we have got two major service providing Chief Directorates: Social Development, which looks at the social development issue like economic empowerment, strategy for antipoverty programs. And we have got Welfare Services, which I am, a part of. It looks at the services to children, youth, families’ women and the aged. With the transformation I have moved to women services. We are trying to mainstream gender equality in welfare services like in the case where there is a divorce that the families concerned do not violate the rights of women.

And then as I said the children and the families that we are talking about are not just affected by divorce. They could be affected by chronic illnesses, special protection, they could be victims of violence of some sort or exploitation or abuse, and poverty, disabilities, crime or substance abuse could affect them. Substance abuse is very much linked with divorce, it is one of the factors that lead to divorce. We are going to have hundreds of thousands of children who will be affected with HIV\AIDS and at the same time by divorce. What is going to happen to those children. We are told that in the next fifteen years we don’t know how many people are going to be affected by HIV\AIDS, that many children will be orphaned. If those children come from families, which are divorced, it is going to cause a traumatic experience for those children.

We are looking at prevention. We are moving towards re-prioritising funds and energies towards prevention. I will also show you what we mean by prevention and early intervention also statutory process and continuum of care. And we have got human resources here funding minimum standard, social security and quality assurance. All these are going to be done in the context of the community and family and developmental in approach. By developmental you remember I said we are going to build strengths of people and competencies. This is where we hope to move. This is our framework for services, prevention re-strengthen capacity or develop new capacities to promote resilience and increase ability to benefit from developmental opportunities.

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The department has got a flexible program for women who are unemployed. At the moment we are looking at expanding that project not only to include women who are unemployed but we include their families so that they can benefit from capacity building and economic independence, we are going to re-prioritise funding to preventative programs. Early intervention its family counselling for mediation purposes and also for the children, family support during divorce times. Family preservation is very important. That when people divorce the children are not caught up between the two families especially in the extended family that they continue supporting the children although they are divided, they have separated.

And the PET (that is Parent Effectiveness Training) will be looking at life skills training for families, youths, for children so that they manage to cope with the separation. At times children get into trouble because of the breakdown of families. The diversion programs instead of getting children into the justice system; they will be diverted from the justice system through diversion programs. Family conferencing is very popular in black areas. As I said, before a matter can be taken forward it is discussed within the community or the family or the extended family. I think we need to reclaim that and spread it throughout.

And then grants, we have got the most disputed child care grants, and that children, especially those who are in the rural areas benefit from the child support grant and it could be increased later in the years. It is R100 per month now and we know that some people don’t agree with it, they think it is too little but for the family who does not have anything it is a lot of money. And that is social security in general, the plan of the department is to integrate social security measures or interventions with Welfare Services that while people are receiving social security at the same time their capacity is built so that they can be independent from the state.

Statutory process should be child centred, if there are court procedures they should be child centred, family centred, integrated and proper assessment should be done. Like before the child is removed from the family because the mother is a single parent, doesn’t provide proper supervision and so on, or the child is abused, a thorough assessment of the family and the child, a developmental assessment in that case should be done.

The continuum of care services is when the child or a person could be an older person or could be an abused mother is removed from where they live into alternative care. Alternative care could be adoption, which is permanent, foster care, residential care and so on. It should be empowering. At the moment the study that was done through the IMC process in residential quarters, it was found that children are abused in state facilities and also non governmental facilities, and that they are not empowered, they are just kept there, they don’t have programs and so on. So we are moving into a situation where we want, while children are in residential care or it could be foster care, or an alternative care. They cannot be deprived of their normal resources and services. Continuum of care should be the most empowering to the children and most of it should be least restrictive. Least restrictive means that children should not be caged in there should be an easy access of the children to their community, to their parents and so on. And most restricted is those children who have committed serious crimes, who needs to be contained, but while they are there their capacity or developmental needs, needs to be addressed. So this is where the department is moving and the way I hear from the problems that have come out, have been discussed, they will be addressed through this new approach.

DISCUSSION (PART ONE)

Discussions, comments and questions arising from the background papers proved to be very significant to the issues of customary and traditional marriages. Participants were in agreement about the need for and importance of collecting marriage and divorce statistics. Concern was also raised about a need for broad consultation with religious leaders, around issues of traditional, customary and religious rites for marriages and divorces.

The participants felt that, if an improvement in the collection of marriage and divorce statistics is required, then the process of collecting statistics on customary and traditional marriages and divorces needs to be discussed. It was suggested that one way of understanding this would be to use subjective approaches to collecting historical data on traditional and customary marriages from older people in the community. Another approach suggested was collection and inclusion of marriage history as a model for the October Household Survey.

Participants also raised questions about the defining and understanding of marriage and family. This was an important point in that the process of collection of statistics largely depends on definitions and on how people view things. Participants acknowledged that it is impossible to separate perceptions and culture from statistics. It was argued that the conceptualisation of marriage and family is far more problematic and complex. Cultural and religious defining of these concepts vary. Also the notion of living together, in reality this

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further complicates issues of understanding family structure.

On the question of family structure concern was raised over the reality of the situation of family structure in South Africa. This was especially in regard to the presentation on "How Can Statistics on Marriage and Divorce help us to understand the State of the South African Family and Household". Here the issue of how to ask and interpret the question of ‘living together’ was raised. It was suggested that the use of the term ‘partner’ be added. The interpretation of the term ‘partner’ by respondents is still to be explored.

Also highlighted was the confusion that existed over the use of the concept polygamy, especially in demographic literature. In clarifying the concepts, polygamy was described as an ‘umbrella’ term that refers to polygany and polyandry. Polygany referred to the situation where a man marries more than one wife and polyandry where a woman marries more than one man.

The question of the inclusion of practices of polygamy, polyandry and polygany as customary and traditional marriages raised some interesting arguments. It was pointed out that while the South African constitution accommodates cultural parity and multiculturalism and advocates non-discrimination it is not an open door policy to the creation of cultures. Meaning that while sections of the constitution dealt with freedom of religion, opinions and beliefs and the right to personal family law, that is any law based on religion or tradition, this was specific to South African culture. The issue of polyandry, it was argued, was not particular to any South African culture, but had it been it would have been included.

The issue of legislating cultural and religious rites can be problematic. In the constitution Section 6 it says that a woman married in a customary marriage shall have the same status as that of her husband to acquire property and dispose of it, to litigate unassisted and to contract. This has created many problems in that in some cultural and religious groups women are not accorded such liberties. The point was made that while the constitution may lead to some changes in cultural behaviour it does not have a broad mandate to change cultural behaviour. The South African Law Commission saw their role as having a broad mandate to accommodate the imperatives of the constitution.

PART TWO: Marriage and Divorce Registration Forms and Process

The papers presented in this section were transcribed from the recordings of workshop.

5. The Process of Registration of Marriages and Divorces in South Africa: Highlights of Changes in the 1990’s

Mr. De Jonge

Department of Home Affairs

From the 1st of June 1996 no magistrate or nobody from the Department of Justice solemnised marriages. It all done by Department Home Affairs.

The question asked the process of registration of Marriages and Divorces in South Africa, highlights of the changes in the 1990’s. Quite easy, in short nothing. There are no highlights. You must remember that this act was implemented in 1961. So it’s nearly 40 years old, so I think in 1990’s there can’t be any highlights. It’s a process that’s old, it’s in place and it’s carried on from year to year. Helen will tell you the process that it’s going through. It’s based on two legs, one is registration of marriages and the other one is on the appointment of marriage officers. That is one of the other functions that is done in the section. Then later on we can say: if this question were asked for example next year then it would keep you busy for the whole day. Because as you have noticed the new Customary Marriages Act that’s come into operation, then the Law Commission is now busy with the new Marriages Act, Civil Marriages then the religious rites marriages.

Then the other question is the living together situation and then another sensitive part where there is a lot of pressure on the Department at the moment is people of the same sex. You will notice that I have not mentioned divorces because divorce is not one of our functions. We only capture divorces on computer to rectify the status of the married couple. That’s why we are not concentrating on divorces.

Helen Mostert

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We keep on referring to civil marriages and religious marriages. To us civil and religious marriages is exactly the same because civil marriage is only solemnised by a magistrate or now at our offices while we see a religious marriage also as a sort of civil marriage just solemnised by a duly designated marriage officer. We see a religious marriage as a marriage entered into by the rites of the church like the Muslim, Hindu and all the other different groups who do not have duly designated marriage officers. To us that is a religious marriage.

To start with, for a civil or a religious marriage we must have duly designated marriage officer. That person is designated by us and still referring back to 1961 only designated or to solemnise in terms of Christian, Jewish, Mohammedan or any Indian religion. Like we heard in the case of a Muslim marriage, the ceremony is performed and then a duly designated Muslim Priest will do the legal aspects part at a side table. But for us to register a marriage is very simple. We receive the marriage register from the marriage officer and we only capture the details of that marriage into the population register.

On this form you will see all this black marks/dots. This is the information that we capture into the population register and this is also the information that comes through to Statistics South Africa on the magnetic tape each and every month. To the registration of this marriage, there is really nothing. It is the ceremony or all the functions that are performed before the solemnisation of a marriage that is important. It only takes us a minute to register. I think that is about all there is to the registration of a marriage.

6. Contents of the Marriages Certificates and the Divorce Forms and Coding Practices at Statistics South Africa

Eleine Venter


We only receive this certificate. If there is no ID number filled in by the husband or the wife that is going to get married then we use the certificate. We get a printout from our programmer, Mrs Mentz prepares it. The information is from Home Affairs. So what I would like to show you, what we use. The husband’s birth date, the wife’s birth date, the marital status of both of them.

This is what we do when we do the coding. We will work out the ages of the husband and wife and that is what we are going to do with our capturing and the marital status of both husband and wife. And then here the only thing we use here is the date when they got married and the place where they got married. We use the Standard Code List of Areas to code down there. And here at the bottom is the place where it was solemnised either by civil or church or whatever. In this case it was in court. This is the only coding we do here is the age, marital status, age of the woman, marital status and then the coding of the district, and the date when they got married and then either the church code.

Up to now we have only been using codes 1-15 for our churches. But we are going to change that now. All the other churches, everything under one code. But we are going to change that now, change to the census codes.

Mary Kganakga


I am going to talk about contents of the divorce form and coding practices at Statistics South Africa. The dissolution of marriages by divorce in the Republic of South Africa is regulated by the Divorce Act 70 of 1979. In the past, we at Statistics SA had a divorce form that was sent out to the courts and also requested by Attorneys. The form is known as form 07-04. It had to be filled in after each and every decree of divorce had been granted for the compilation of divorce statistics.

We received completed divorce forms from the 12 Supreme Courts within the Republic on a monthly basis. The form had questions that had to be provided by the plaintiff and those for the registrar of the court.

The information that had to be supplied by the plaintiff is the following:

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their identity, which is the name and address of the plaintiff,

the population group of both husband and wife,

their occupations at the time of divorce,

their marital Status at the time of marriage,

the number of times that they had been married,

their ages at the time of divorce,

where their marriage was solemnised which was either at the church or magistrate’s office,

the number of minor children involved in the divorce and the date of marriage,

the registrar of the court had to fill in the date of divorce and the court.

I have a transparency here, of the form 07-04 that I was talking about. This form had to be coded and the coding was done in red pen. The district codes had to be here, at the address. And if the person did not specify the place where he or she stays then we used the unspecified code, which was 9999. The district codes that we used were from the Standard Code List of Areas. For the population group, marital status and the place of solemnisation we had to use the numbers that appears on the questionnaire. For instance if a person was white then 1 was going to be used, which was going to be the code for the population group. If the person did not specify code 9 was used. Code 9 is the code for the unspecified. The codes that we used for the occupations are found in the Detailed Occupations Code Lists.

7. Computer Systems for Marriage and Divorces: Past Practices and Future Directions

Elsie Mentz


I have been asked to inform you about our computer systems in the past and where we want to move forward to in the future. I told Dr Bah it’s very easy, I can sum it up in one single sentence and that’s it. Everything is working fine, finished. Then he said no, you have to elaborate, now you will have to accept me with the elaboration.

All our computer systems at this moment are run from mainframe and the language used is Natural. Most of you that are or that has used our data, published data would know that marriages and divorces are published in one publication. But for the computer we don’t see them as one. We see them as two completely different series with no connection between them at all. We receive marriage data from two different sources. We receive the raw data from Home Affairs, in the electronic format. From there we do coding and editing on that data.

Just to give you a brief account of what we do with the computer coding and the bit of problems we have in there. We have two tables: one for place names and one for denomination. When we take a form, they have two specific places for place names. We found that when we did that a place name like say Aliwal North can be written down as Aliwal North or Aliwal Noord. It could have a space in between the two words, it could have a dash in between, it could have a slash or a comma in between or it could be written as one. So to start of with, we first have to eliminate those into getting one specific place name. Thereafter the place names are taken to the Place Name Code List and if it were found to be a legal place name it would then be given a code. If it were not a legal place name it would be put to the edit list.

The same will happen to the denomination. Only a record that has both place name and denomination code correctly would then be added to our final data set. Otherwise this edit list would be gladly passed on to Mrs Venter and those people will have to do the coding. Again the manual coding and editing, it would have been captured and then the editing done and that would be added to the final data set. What happened to these forms when they didn’t have ID numbers, we received certificates, they were coded, captured, edited and also

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edited the final data set. From our final data set we do a lot of tables, lookup tables to see if the data is correct and then we print to you the final tables which you get.

The certificate for divorce, which we receive from the court, basically goes through the same set up as the certificates that we receive for the marriage data. With coding and adding it to the final data set. Both those coding, editing and capturing programs allows for people to delete or to update records as well.

But in keeping with the new policy at Statistics South Africa, we are moving away from mainframe, which means that we are now moving to the PC and server environment, which means that we are now moving away from Natural to Visual Basic as a capturing language and SAS as our statistical analysis language. This brings about the wonderful opportunity of revising our certificates or the variables we use. Adding more, taking away some or whatever is needed. Because as it new and its new systems being implemented the cost implication for that would be much less. In the Visual Basic programs we are going to try and incorporate look up tables which would make coding on the form unnecessary as the people would be able to type in the name and the computer would just automatically insert the correct code. We would then see whether that is really being cost and time effective and if it is it would mean certificates or data to be coded, edited and ready for analysis much quicker and results to be published much quicker.

DISCUSSION (PART TWO)

A number of important issues and questions were raised on the marriage and divorce registration forms and processes. An important point made was that marriage, for some cultural groups, is a process rather than an event. There has to be shift toward registering the process as an event. The participants were in agreement that a lot of change and rethink about the form and registration process is required.

Focusing on the marriage and divorce form participants raised a number of relevant issues. With regard to marriages for Muslim people it was found that each mosque keeps a separate register of marriages that were conducted. A suggestion was made that the Muslim Council could submit copies of the marriage registers and relevant information either to Stats SA or to the Department of Home Affairs. It was felt that this would prevent the duplication in the process of registering marriages. Another point raised with regard to Muslim marriages is that traditionally it is performed in the hometown of the bride.

In terms of coding of place names, the Department of Home Affairs codes according to postal codes book. Stats SA makes use of the Census demarcated magisterial districts to code place names. At present more that 13 500 place names have to be coded and standardised, if the system is to be workable. Coding is done according to where the marriage is registered.

Also raised was the question of the change in surname for women. Participants raised the point that the issue of surnames is treated differently for men and women. It was argued that when a woman got married that it was automatically assumed by the Department of Home Affairs that the woman would assume the surname of her husband. This is different for divorces, the name you were married with and have divorce with does not change. Also included in the discussion was the issue of double-barrelled surnames. That in these cases the name of the husband is given preference over the name of the wife.

In reply, the Department of Home Affairs stated that the Population Register had been developed to automatically allocate the female with the surname of the male party. If a woman would like to go back to her maiden name, whether after divorce or marriage, she would be required to forward a letter to the Department of Home Affairs requesting them to make the necessary changes. Also they acknowledged that the Department of Home Affairs is in a process of having the marriage register changed. They will be including a section on the marriage register that asks whether the woman would prefer to maintain her maiden name, link her maiden name to her husbands or take on her husband’s surname. This will speed up the process for capturing of marriages and the necessary details.

The question of registering more than one marriage was raised. The current civil marriage system is programmed to reject a second marriage entry. On average the Department of Home Affairs reports that it handles about 40 to 60 bigamist marriages a week. However the new marriages Act, may require that the civil system be changed to accommodate customary and religious marriages that allow for more than one marriage at a time. An interesting point raised by the Department of Home Affairs is that for marriages and divorces among Italian, Greek and Portuguese people, these marriages and divorce have to be registered in the country of citizenship. So even if you are a permanent resident in South Africa, and you belong to one of these ethnic groups you have to register your marriage and divorce in these countries.

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All the above issues raised point to the fact that implementing the new Marriage Act and the inclusion of traditional and customary divorces will require a change in the manner in which marriages and divorces are understood and registered.

Clarification was required with regard to which governmental departments administer Acts relating to divorce, marriage and custody. The Marriage Acts are administered by the Department of Home Affairs, the Divorce Act by the Department of Justice to which the South African Law Commission has a significant role. Child custody and adoption of children is a Department of Welfare issue. Also raised was the point that divorces are no longer dissolved by the Supreme Court, as indicated in the old divorce form. Currently the High Court and Family Court have taken on the duties of dissolving marriages and looking into cases of child custody.

PART THREE: PANEL DISCUSSIONS

8. The Role of Various Stakeholders in the Improvement of Marriages and Divorces Statistics

Chair: Dr S. Bah:

We have sent invitations to all the Registrars of the High Courts but some of them could not make it, so we would like to invite those representing the religious groups. Traditional leaders were invited but I don’t think that they came. We had hoped to have a more diverse kind of presentation. We had even invited members of the ZCC, the Apostolic Faith and members from various other religious organisations and groups because marriages from these faiths might be escaping the system, but unfortunately we did not have much representation from them as well

The aim of this panel discussion is that we realised that those on the field, the actual people partaking in the registration of Marriages or Divorces through their experiences would be able to contribute on how we can improve the registration of those events. Because they register the events, they know those events that slip through their system and so on. We want to know how to tighten the loop and we would like them to share their experiences with us and their suggestions on how the registration of Marriages and Divorces could be improve based on their experiences.

The panel consisted of the following people:

• Mr de Jonge

• Ms Helen Mostert

• Sheikh Shayeed

• Sheikh Dockrat

• Ms. Barbara Hector

• Dr. Likhapa Mbatha

Mr de Jonge:

We only have one Act. It is an old Act, which is under revision with the Law Commission, so we can’t say much at the moment. We have received a new Customary Marriage Act and we are working hard to get our system working because there is a lot of changes on our system that have to be implemented that is creation of new forms, registration system, the appointing of marriage officers etc. The other thing is problems that we do have for example status of a person. Especially for statistics purposes, at the moment population across as it is one man one woman, children one father one mother. We have to change everything there, if you look at the status. For example if the husband dies and he is married to eight women, you would have eight

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widows. That is one of the complications. The other thing is for examples if one of the women dies you do not have a widower. That’s the same thing with the divorces, so that would hamper the statistics.

The other thing is the granting of permission of marriages, customary differs from common law that is used for civil marriage. We must bring that together personally it differs from Common Law and if that is used for Civil Marriage you must bring back together. Then the age the Act as it is at the moment states that the parties must be 18 years or older. In the Civil Marriage Act at the moment if a girl is 15 years old and a boy is under 18 years then the permission of the Minister of Home Affairs is required. There is no provision for that in the Customary Marriage Act so that is the problem. But as I say we have already changed the system or have instructed IT department to look at the system. Our next step is to look at the regulations that we have to submit including the necessary forms. We are quite busy with the new Act.

Ms Helen Mostert:

Once we have got our mainframe system together to capture Customary Marriages we asked them to do it sort of when the religious marriages come it will be adaptable and we can use the system for instance for Muslim marriages. There are a few problems that we will have to sort out.

If you go to the Customary Marriage Act, there is a stipulation here regarding marriages within the prohibited degrees of relationships. That will be dealt with according to Customary Law. In our Marriage Act it is stipulated what is prohibited and what is not. So we will have to go and enquire at the people because all the different customs will have different rules. And we are not going to know what all the different rules are. Because in our Marriage Act suppose Mr de Jonge was married to me and I am deceased and now he wants to marry my daughter that is prohibited but I believe in some of the Black’s customs it is allowed. A father-in-law, if no children where borne of a relationship, can marry his deceased son’s or divorced son’s wife. According to this Act it is not allowed. So we are experiencing big problems and we will have to go and find out from the right people what is going for what here.

Sheikh Shayeed:

The former speaker raised salient issues concerning marriage according to customary law. This mandates special meetings with religious leaders in order to comprehend the diversity of custom and laws in the facet of the institution of marriage:

I would like to clarify a few issues:

In the case of Islamic marriages it is significant to note that the 18 years in no precedent. Marriage is possible as soon as puberty is attained (for both males and females).

The expression ‘Nikah’ (marriage) and ‘Talaq’ (divorce) are serious pronouncement according to Islamic law. Once uttered the concepts represented become binding. For example, if a man, in sport, tells his wife: ‘I divorce you’, the divorce is effective. A requirement of Islamic marriages is that they have to be done in the presence of witnesses. After a Muslim couple have been married according to Islamic specifications, it is rather insulting and a great duplication to once again, but this time, to appear before a Judge to exchange marriage vows, when the marriage was transacted earlier before the authority of God.

There is a prescribed procedure with regard to the dissolution of Islamic marriages. Here secular courts ought to be acquainted with the systems according to Islamic Jurisprudence- the system of counseling, arbitration etc.

A Muslim husband and wife could have varying surnames. Islam permits the wife to retain her maiden name.

Whilst Islam acknowledges polygamy, it must be understood that it is limited polygamy that Islam advocates. A capable Muslim can marry up to four times.

Numerous other examples can be referred to. Thus it is imperative to acquire sufficient knowledge on Islamic marriages and related subject, which would enable fluency with regard to the registration of marriages and divorces.

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Muslims would have to centralise records of marriages and divorces. This would have to be done as soon as possible to aid statistics.

Sheikh Ashraf Dockrat:

In the time I have been allocated, I will try to cover three aspects. Firstly, I would like to give you a brief introduction and then look at the status quo as far as the religious communities are concerned and also as far as state’s legislation is concerned. And thirdly, I would like to ask one or two ethical questions concerning statistics.

By way of introduction let me state that as Muslims we are motivated by a saying of the Prophet Muhammad in which he is reported to have said: "Make known the knowledge of these marriages". In other words, for us statistics are important and are motivated from a religious point of view.

I also believe that in our quest for determining the statistics that need to be collected we have to determine what the needs of the various religious groups are. They may also have some expectations that they would like to be met in the supply of information.

Second thing that I want to discuss is the status quo. Firstly among the religious communities in Islam the marriages is a contract. In article 30 of the 1961 legislation alludes to this. The second aspect about Islam is that there is no religious hierarchy. In other words there is no priest or there is no person ordained by the church to marry. Any believer can do it, any person who fulfils the requirements as far as believe is concerned in front of two witnesses that can be contacted. The second thing is regarding the recorded contract. Professor Nhlapo showed us that these things were notoriously public.

The Jamiatul Ulama (Council of Muslim Theologians) has a register of marriages, which is supplied to mosques. The procedure is that one copy of the marriage certificate is kept by the wife and this usually happens, another copy is kept by the husband, the third copy is kept in the local mosque register. The fourth copy is supposed to be returned to the council. Unfortunately, this does not happen in most cases.

Also if in some way the copies of the registrar can be collaborated with what is required by Home Affairs census codes etc., can be put into that. The other issue for example marriageable age, polygamy, and the dowry etc, are greater problems that we will not look at, at this junction. But certainly one of the problems that we have is therefore that these forms are often not returned. Article 29 in the 1961 Act requires a register to be kept.

As far as divorces are concerned these are also sometimes only pronounced orally. The society and the family involvement in this is very strong and the involvement of the religious people themselves in the dissolution of a marriage is a very strong thing. However there is no register of divorces kept in order to obtain statistics thereof.

There is a period then of waiting of three to four months for the woman before she can contract another marriage. Does this mean that she is divorced at the time of pronouncement or after the waiting period has lapsed? These are the things that we have to discuss. Also in the case where Mr Nhlapo referred to setting of the woman aside, the woman is not divorced but at the same time she is not in a marriage. In those cases the council has instituted a system of dissolution of the marriage themselves. In other words, they then pronounce the dissolution of the marriage. Statistics of these cases are easily available since they are all done through the Council. And that is record, we have records of these things but unfortunately the incidents of these nature are very small.

All right let’s go on to the state legislation very quickly. The Marriage Act no 25 of 1961 article 3 where it designate Ministers of Religion and other persons attached to churches as Marriage Officers for a specific area and a specific period. It is problematic in several respects despite the references to Mohammedan, which is a very offensive term to all Muslims. It has got other problems as well. The first thing is that every marriage is potentially polygamous in Islam with the result that we who are offered the opportunity to be marriage officers refuse to do so because it would then be limiting us from performing a polygamous marriage which we believe should be our right. And if we contravene the Act then of course would be liable to a R400 fine or twelve or six months imprisonment. Article 37 then speaks of marriages that are contracted outside of South Africa and we have problems there because some of our marriages are contracted by proxy in India for example.

To conclude then we have to ask one ethical question and that is religious groups are becoming more and

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more sceptical about statistics and what eventually is done with statistics. It is fine to supply all these statistics to Statistics South Africa but will that then go in to the hands of a person who wants to make sweeping generalisations about the religious community? This would be unacceptable to us. If we supply statistics then we want to be part of the results that come out of that statistics. So there is an ethical question at the bottom of all this that is very pertinent. Lastly, I believe that as Africans our statistics have to be different from our European counterparts. We have to have statistics for Africa and this is something that is of concern to us.

To end then with a personal anecdote, I just want to say that I got married in 1993, my child was born in 1994. In order for my marriage to be recognised in the eyes of the law however I had to remarry in front of a marriage officer, something I did some three years after the birth of my child. These are the types of problems that are faced as a result of non-recognition of Muslim marriages.

Ms. Barbara Hector:

I would like to add on the comments that were expressed now. One thing we must remember is that as far as I can recollect "Sharia Law" dissolves Muslim marriages. In those courts we should also look at the representation of women and also the rights of the children in comparison with our constitution. I don’t say this to be controversial. I say this from a child’s centre point of view of, which is the population I represent here today. As far as the representation of the registrars, I was in private practice so I am going to speak from my recollection as a private practitioner. The registration form that is included in the court document at the moment just to make some comment on the basis of the that it should be under oath or not. At the moment it does not form part of a cross-examination material. So should it be done in affidavit form and there is incorrect information on the form, then the person can be severely prejudiced.

The other comment that I would like to make is that our whole movement is towards multisectorial. So I don’t think one should, I think that is the way all of us are represented here today. Yes, but I think that we should move away from the fact that one Department has the responsibility to do this, and another Department has the responsibility to do something else. In the registrar office, the clerk actually stamps or collects that specific form, the registrar doesn’t do it himself. So that form is, the court’s documents are not allowed e, or the file is not opened or complete if that document is not filled in. That is what I can recollect when I did these cases.

So I think that is enough at this stage to point it out, also for the information concerning the whereabouts of the wife is very important. I see on the new form it is also left out. It should not be left out, it is very important regarding to the minor children as well as if one considers the fact that the Maintenance Act is going to be included in the new Family Courts. The Maintenance Court is going to be absorbed in there. It is important then to know where the wife finds herself or the husband for that matter.

And I think that it is very important that we have this kind at the onset. If you look at intervention procedures and at the whole policy of the Department of Justice and the Department of Welfare. It is extremely important to have this kind of information because your prevention and intervention strategies can then really work and it can only be successful then. Instead of collecting the evidence afterwards, you can see the difference that happened when the Family Advocates Office came in and the documentation was completed right at the onset of the filing of the documents, what type of intervention could be done at that stage.

Dr. Likhapa Mbatha:

For us what would be important would be to consult, you know compiling questionnaires with the aim of soliciting input from the public at large as to the type of questions that are being asked. The point here is not necessarily to allow people to rephrase your questions but is basically to give the public an opportunity to know the type of questions that they are going to answer. Because if we use registration of marriages as an example it is very important for the public at large to know why marriages have to be registered. Because if somebody comes to my house and asks me whether I have registered my marriage without first telling me the importance of registration. The type of information that I am likely to give depends on my mood, because I don’t know why the information is needed. So, I would like Statistics South Africa to try and bring on everybody not to leave people behind. I am aware that it is not everybody who is using this information, but we also at times underplay the importance of letting these people know what we are doing.

I also felt that it would be important to keep on working work-shopping staff in some of these government offices. Because what is coming out for me is the fact that those who are collecting these data at times also don’t know how and why it is being captured. And that on its own leaves a lot to be desired on the type of information that they collect on the spot, because they don’t know why they are collecting it. So I would urge the government and everybody involved to set aside money, to keep on work-shopping the clerks and showing them the importance of collecting adequate data and the time it would save if they collect adequate

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data on the spot.

DISCUSSION (PART THREE)

The panel discussion prompted many questions and comments from the participants especially on the issues of marriage and living together and how this influences not only the registration process for the new Act but also cultural and religious understandings. Also raised was the question of whether South Africa was drawing upon any international cases of recognition of customary marriages and divorce. In the discussion the question was raised as to how and to what extent would there be consultations and accommodation of every religious and cultural group in South Africa.

In response to the comments from Ms. Barbara Hector, the Muslim Cleric’s raised the point that in the hearings held at the HSRC on Customary Marriages, the perceptions of held by the Justice Department concerning the status of women, patriarchy, polygamy and children were very pre-conceived notions on these issues. They argued that the Department of Justice should be more neutral, than attempt to do away with issues such as polygamy. This could be seen as trying to change religion and culture, as polygamy is a way of life for a substantial proportion of the population. Also, according to their views, the Muslim marriages had been presented, in the Law Commission discussion papers from an academic interpretation of the Muslim marriage laws rather than from a religious point. It was felt that the academic interpretation of the Muslim laws on marriage and divorce might have been presented in a more liberal manner than is practised by Muslim people, especially in regard to the interpretation of the ‘Sharia Law’. This was found to be problematic. This was especially in regard, to the status of women and the question of custody of children in Muslim marriages and divorces. Muslim women, it was stated, also had the right to pronounce divorce via a judge. It was argued that the issue of women’s status and child rights, for Muslims, was dealt with in accordance to the religious teachings i.e. justice.

Also highlighted was the point that a new trend in most modern societies was for couples to live together, rather than to marry. The point was raised as to why the state needed to collect data on marriages on divorces. The argument was that while knowing this information could have implications for fertility, living together also presented a need for looking at consumption patterns within the ‘household unit. Looking at the issue of living together, it was suggested that the statistics implied that at least 40% of South African’s are not married but that some may be living together, i.e. in a ‘sexual union’. The significance of the argument was that instead of focusing only on marriages, data should be collected on couples living together.

An interesting distinction between the secular and religious meanings of marriage was explored. Focusing back to the question on whether marriage mattered, it was felt that for religious groups marriage represented an important part. From a Muslim point of view, it was felt that marriage acted as a barrier to promiscuity and for gay-lesbian relationships.

The above comments on whether marriage mattered proved to be very interesting. The comment prompted the following responses:

Firstly the need for the collection of statistics on marriage was seen as being significant. Marriage it was argued, is a proxy in relation to fertility, the time of gestation to the time of risk. The argument was that by restricting the manner, in which we define marriages, is in itself a problem.

Secondly, that the collection of data is critical. Also highlighted was the fact that statistics is released in aggregated form that describes the situation and relevance to a country. The collection of statistics enables one to compare trends with other countries. Studying the development in marriage and divorce statistics enables one to quantify the degree of the problem, the degree of cohabitation and the degree of remarriage and so on.

A case in point, relating to the collection of data on age of marriage and waiting time before remarriage, was that of the case study of Nortese, in Nigeria, in 1982. The project focused on mortality and fertility, but also looked at the issue of marriage. The sample size consisted of over 3 000 women of reproductive age, it covered over 3 000 household and enumerated nearly fifteen thousand people in the households. The collection of marriage histories, brought out two concerns, that is age at first marriage and waiting time before remarriage.

Amongst those women who were between the ages of 15-49 at the time of survey, some women actually reported that they were married at the age of eight. Now the question is, in the legal sense, in that country the minimum age of marriage is not eight. To what extent does the legal age of within that particular country have

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meaning. We are talking here about a community that is 100 % Muslim community. The other thing was the waiting time before remarriage. This is a community where divorce is very common, in the way that you sometimes explain pronouncement, limited polygamy is very common. How long does a man have to wait how does the man and woman has to wait when they divorce before they can remarry. The answer that the community gave was that the women have to wait a minimum of ninety days before they can remarry. They said that a man could marry almost immediately. Then I asked "Why". The rationale given was that the intention was to find out whether the woman is carrying out a pregnancy from the previous marriage.

PART FOUR: WORK GROUP REPORT BACK

Group Set-up

The workshop comprised of three workgroups. Each group had a chairperson, who also acted as a rapporteur (to report back). The rapporteurs’ task was to report back to all participants on the deliberations of their respective groups. Dr Udjo of Statistics South Africa chaired the report back sessions.

Group Report Back

Group 1:

Review of the current contents of the divorce form to reflect emerging concerns

Report back Ms Barbara Hector

(Office of the Family Advocate)

This group focused on the format of the statistic form and what sort of important information can be included. Reference is made to the divorce form draft.

Identity

The physical address of both parties must be completed, if this is not known then use the last known address. The question of population group versus race is important and can be controversial. For instance that of Indian/ Asian and that of Black/ African. We can have Africans or African Americans.

Problems around occupation and profession are important- as some one can have a particular occupation but not necessarily employed or involved in that particular field. It was suggested that a sub-question be added; that is 1.5 b State if Employed/ Unemployed

Marital Status at Time of Marriage

Need to add a subsection/ block that asks about type of marriage that is whether it was a religious, civil or customary marriage or other (specify).

The category bachelor or spinster should be changed to never married.

Number of Times Married

This should be changed to number of time married (excluding current marriage)

Age in Completed Years at Time of Divorce

Should be changed to Age at time of Divorce Application.

Present Marriage Solemnised

Should stay as is

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Matrimonial Property System

Should stay as is: presently we have only 3 monitor regimes and if you look at customary marriages one should have others that make provision for the present act, that is the new act organisation on customary. Union also in-community of property so its in-community, out of community, excluding accrual excluding accrual.

Number of Minor Children Involved

Should add the ages and sex of the number of minor children involved

Supreme Court

Supreme Court to be changed to High Courts or family court.

In terms of publication and in terms of the divorce act nobody is allowed to publish anything except the names of the parties, except for research purposes, so when you give this information out its a criminal offence to so. You can publish it for research purposes because the divorce act backs provision for that. So for any kind of research purposes it can be published. You can not mention the individuals. We also want to add the date of separation.

Group 2:

Suggestions on how to register customary marriages and divorces

Report back Dr. Maria Mabetoa

(Department of Welfare)

Centred the discussion on who the registering officers should be:

The concern is that even though traditional leaders are not excluded from participating in that role, the group saw the possibility of problems if traditional leaders are used. We agreed that traditional leaders are not trained or they don’t know the contents of this law the fact that some of them are uneducated and will not be easy to train. The financial implications this training will have and are other factors

A suggestion is that maybe the Home Affairs offices can take up that role that even a possibility of using the mobile unit from home affairs might be looked into. The argument here is that Home Affairs already has officers in some of these remote rural areas working on issuing Identity Documents so it won’t be much of an expense to train those people to administer the Recognition of Customary Marriages Acts but even within Home Affairs there were problems.

It was pointed out that even officers of Home Affairs themselves will require some training since the trainers in the department are also not familiar with some of the customary laws that they will be expected to administer.

They pointed out that there would be a need to change the computer system in the department that at the moment there is a attempt to copy from how in Kwazulu /Natal the code was administered since it recognise a customary marriages.

Group 3:

Suggestions on how to improve the registration of religious marriages and divorces

Report back Sheikh M.A.E. Dockrat

(Jamiatul-Ulama)

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The main points of discussion focused on:

First thing was the process, and the co-ordination of that process. In other words looking at who the stakeholders and the main players where and also the idea of registration. Information should be registered in a useable form for the people of Statistics South Africa. The aim must be identified clearly.

We have to review the current practices with a view to identify areas of conflict, in other words were the legal system will conflict with the religious system.

To consolidate the different needs Statistics South Africa might have one need, the Welfare Departments may have another need, and the religious people might have another need. To consolidate those needs put them on useable forms.

To look at the available statistics, what statistics are there and whether these statistics are linked in anyway. Do we have via the ID numbers a link to say whether the person is married or has he has conducted a second marriage or not?

Looking at these aims in detail:

The first aspect of our aim, it was to capture statistics of religious only solemnisation. We were not speaking of marriage done civilly, as soon as the marriage is done on a civil procedure then statistics are available. We are looking at religious only solemnisation.

Secondly is to instil confidence in the minds of the population that such statistics are vital and important. In this way advertising may pay. We should in no way antagonise the people who are involved in a process.

Thirdly to identify the problem of dual registration, and the discrepancy that there can be a result of that in statistics. There could be a delay between the time at which a civil marriage and religious marriage are contracted. It is also essential to understand the dynamics within the religious only marriages, and how these marriages are actually contracted and what happens before a person religiously takes another as his spouse. Sensitivity to this and an understanding of the process is essential.

If we go back to the aspect of the process, then the first aim is to empower the religious organisations. To administer this from a central point is and to keep all information at one place is expensive and a very daunting task. But if we empower the religious organisations in different provinces in the different denominations to be satellites for the information and give them correct training we can achieve better results. It was also felt that it is important to prevent duplication. If a person is married civilly then we don’t want that same information to come through us via a religious situation.

If we look at current practices there are two types of marriages: the first is a civil and the other a religious marriage. The civil marriage is out of the topic we are talking not within the ambit of this discussion. The second one is a purely religious marriage. This is our concern. If we look at the purely religious marriage in the principal religious marriage groups, Christians contract the purely religious marriage but also the majority of them contract the civil religious marriage also. Excepts perhaps the traditional churches like the ZCC or may be the Mormons or others. Then amongst the Jews we find a similar situation.

With Muslims, however, the situation is slightly different where a "nikah" or a marriage register is kept. The problem with these registers is that they are freely available from the printers, the publishers of these registers and there is no control on all this registrars. Every mosque buys its own, every Imaam or "Sheikh" will buy his own in case he has to contract a marriage at home or is invited some place, he takes his own registrar with. Copies are kept and these certificates are then issued one to groom and one to the bride. A copy is kept in his book but there are no returns. Nothing goes to central point were they are processed. Also the nature of information in these books need to be updated and brought into line of what is required statistically. So the major problem here is that the procedure is not controlled. The same with the Hindus, who our group pointed out don’t have anything in writing at all.

The other is that, in other countries before issuing a civil marriage document the officer will inquire whether a traditional marriage has been contracted into or not. If the traditional marriage has not been contracted into it, the civil procedure will not proceed. So they will first insist on a traditional marriage. And this dual marriage is a common thing throughout other parts of Africa.

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When we look for a date of marriage we have to distinguish between the date of recognition in other words the date on which it is registered with the Home Affairs as a religious marriage and the date of actual contract of the marriage in the mosque, church or temple. This has implications for the legitimacy of a child born in or out of wedlock.

Continuing with the problems: the aspect of the Customary Marriages Act and the registering officer there removes the dual system. The customary marriage has its own character it is very different from a civil marriage. However with the religious marriage still have to decide on whether we have to take it to be a civil marriage or to have a character of its own. The woman only feels secure once the civil marriage has been contracted into, in most studies this is what we find.

The other question that we have to ask is which is the legal marriage and which marriage has consequences, is it the first religious marriage or the civil marriage? We discussed the problem of cross religious marriage and where is the information collected, where are the statistics collected. A person is married in a religious Hindu temple and then goes to a mosque, who is giving the information in this case. So the questions that have to be asked is has this marriage been solemnised elsewhere and do you have the intention to do so later on. What is required then is a well co-ordinated system across religious groups. This is the only solution. We can’t have a piecemeal situation where Hindus doing it in certain way and Muslims doing it their way, we have to go across the board allow for individual differences perhaps in the format of the book but insist on certain documentation that has to accompany those books. We have to instil a lot of confidence in the people that that is a right thing to do for there own purposes. This is our challenge. A section within a department of Home Affairs will somehow have to be created just for religious marriages.

Two other problems that came up rather late in the discussion that is the question of proxy how the information about these marriages will be collected.

DISCUSSION (PART FOUR)

The work group report back, especially on the changes for the divorce form, prompted discussions around:

choice of surname after a divorce

With regard, to choice of surname after a divorce, it was suggested that perhaps a question be included on the form that will enable a party after a divorce to use their maiden surname.

the classification of population group

The issue of population group versus the use of the term race group was discussed. It was felt that using the term ‘Black’ could lead to confusion and difference in interpretation. Also raised was the question of how some respondents may interpret the use of the term ‘African’. This related to perception of one identity as a person rather than the colour of one’s skin.

At Stats SA, in the census report there is different groups Whites, Indians, Coloureds and Blacks. With regards to the last category, what happens with the divorce forms and many of our correspondence decided that not to involve population group. They don’t want to be classified. We got correspondence from lawyers who also rejected to the use of population group identifier so what we decided in the past what we were doing was forcing every one to be the part of the four population groups. We use to check the surname and the province and then decide that this person is in such a race group. We discouraged that practice. We discovered that on 1996 data unspecified population group was 11.7% about 12% of all divorces are on specified population group we have to retain that category.

occupation or profession

The occupation and profession issue was also seen as a difficult category. Most especially statistics have a certain purpose, meaning a person might be a doctor but employed as a pharmacist assistant maybe he cannot get a job in the area of his qualification so it means that statistics that surfaces could actually identify a certain need etc. Profession could be as much as you are a lawyer but you are not practising at the moment. When we look on profession then you should ask for area of employment.

Presumably this question tries to capture is what are you currently doing. The unemployed might be interesting the problem is the strict definition of statistical terms you can be not economically active employed

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or working. So are we going to allow three categories? In other word it’s the: not economically active as the people who are not working in the labour force for pay and don’t want to, the unemployed of the people not working in the labour force but do want to but can’t find the job and then we could have occupation for those who are working.

the registering and monitoring of customary marriages

Even the proposed system where you have a system to customary marriages or religious marriages that will come into play you need to monitor that system as well. How many marriages are being registered civilly or how many marriages are getting into a religious system. The way you can do that is by asking questions about religion even if you keep it as an optional question but it has to be there so that you have got some statistics as the success of the other regimes.

RECOMMENDATIONS

Introduction

In the past the non-recognition of customary and religious marriages and divorces saw a large proportion of the population’s marriages and divorces not being registered or recorded. Statistically, incompleteness and exclusions plagued the collection and reporting of marriage and divorce statistics. With the passing of the Recognition of Customary Marriages Act, there now exists room for improving the collection and reporting of these statistics.

The Marriages and Divorces workshop addressed two main issues:

• how to register customary marriages and divorces, particularly in the light of the new Recognition of Customary Marriages Act (120 of 1998)

• revision of the form used to register divorces (Form 07-04) both to reflect provisions in the Customary Marriages Act, and allow for collection of more data on children whose parents are divorced. The latter is necessary for monitoring the implementation of the United Nations Convention on the Rights of the Child (CRC), to which South Africa is a signatory.

With these issues in mind the following recommendations are based on papers presented, discussions and group report backs from the workshop. Some of the recommendations made call for changes which Stats SA can implement on their own or in conjunction with other role-players. Some recommendations refer to implementation for other role-playing bodies.

Recommendations

1. Improving the Registration of Marriages

1.1 In the new Recognition of Customary Marriages Act (120 of 1998) the issue of registration was framed in a manner that failure to register would not invalidate the marriage. This means that no legislation exists that makes registration, especially of customary and religious marriages and divorces, compulsory. Concern was raised about how to make the registration of customary marriages a high priority.

A recommendation put forward was the need for campaign that would raise consciousness for the need to register customary marriages and divorces. While there is a need not only to prioritise the registration of customary marriages it was felt that people needed to be aware of why vital registration is of significance. The argument to support this was that if people knew why they needed to register a marriage or divorce then maybe this would help improve the collection of statistics. As part of this process, emphasis should be placed on the importance of the collection of data on marriages and divorces for the planning of welfare strategies, policies and programmes. An awareness of these statistics as an important tool for analysing data on patterns of first marriages and remarriages and in areas of fertility and family demography also needs to be emphasised.

1.2 A concern was raised that while the new Act recognised customary marriages, the religious

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marriages and divorces as yet are not accorded the same status. This was especially true for Muslim, Hindu and other forms of religious marriages. A recommendation put forward is that all religious marriage and divorces should be accorded the same legislative status as that of customary marriages.

In this regard, a landmark judgement was reaches by the South African Supreme Court of Appeals on 29 September 1999. The judgement supports that the recognition of religious marriages is a positive step in South Africa’s attempt to develop the common law in line with the Constitution. This judgement supports that every woman married in terms of a religious ceremony, be it Muslim, Hindu, Buddhist or Jewish, may have a legally enforceable right against any third party who deprives them of the support of their partner. While the Supreme Court of Appeals judgement was seen as crucial to the continued development of the common law and the rights of women, it indicates that legal attitudes and policy toward these religious marriages will soon ensure that these marriages are legally recognised and recorded. This will serve to improve the completeness of statistics on marriages and divorces and hopefully decrease non-registration and remove duplication of registering.

Also relating to the above (1.3), a point raised was that the understanding of religious rites and customs on marriages and divorces by legislators, policy-makers etc. is based on academic and not theological knowledge. In this regard, the Muslim religious leaders present at the workshop explained that the understanding of how marriages and divorces are contracted in Islam is often misunderstood or misinterpreted by legislators, policy-makers etc. Cases in point were that of the practice of polygamy, women’s rights or status and child custody in divorce situations. The recommendation was that the South African Law Commission in its discussions and drafting of Acts needs to consult more widely not just with Muslim religious leaders but with other religious leaders and organisations.

1.3 On the question of who registering officers should be it was recommended that traditional and religious leaders, as custodians of customs and religious rites, should be considered for this role. While traditional and religious leaders are well versed in traditional customs and religious rites it was felt that their lack of knowledge of the marriage and divorce Acts may be a barrier. It was seen as a barrier in terms of problems that may arise with implementing the Acts. If this option were to be considered this would require funding for the training of traditional and religious leaders as registering officers.

1.4 The other option suggested was that Department of Home Affairs should take up the role as registering officers. However if the registering officer is to appointed by the Department of Home Affairs, there would also be need for training and education on the practices and rites of religious and customary marriages and divorces. The registering officers would need to be extremely knowledgeable about how marriages, divorces and remarriages are understood and practiced. Also the issue of child custody and division of property in divorces cases is important.

2. Administrative Systems: Implementation and Collection of data

The administrative systems through which data on traditional and customary marriages and divorces are compiled and collected would need to change to accommodate the new Act. From a statistics point, this would improve not only the quality and completeness of data but generate a more representative picture of South Africa’s patterns of marriages, divorces, remarriages and situations of the children affected by divorces.

2.1 It was recommended that a co-ordinated registration of marriages and divorces should exist. A suggestion put forward was that in the consultation with religious and traditional leaders, the question of whether documentation or records are kept must be brought up. This should be viewed especially in light of problems of dual registration and late registration of marriages. A case in point is the registration of Muslim marriages. Each mosque keeps a register of the marriages that were contracted. There is no central database or compilation centre that exists to collate this information. Also according to the current marriage legislation for the couples marriage to legally accepted they have to re-register with the Department of Home Affairs. This leads to situations of dual registration, non-registration and late registrations of marriages with the Department of Home Affairs. The recommendation was that the marriage and divorce registers kept by religious or traditional leaders could form part of the administrative system for data collection and compilation.

2.2 A recommendation, following from the above argument, was that in co-ordinating the

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registration and administrative systems this would make it easier to determine whether persons wanting to marry had religiously or customarily entered into another marriage, whether that marriage had been dissolved and if property and the custody of children are involved. Focusing again on the Muslim marriages, religious leaders explained that as their marriage registers were decentralised it was impossible to determine whether persons wanting to marry have contracted marriages at other mosques in other provinces or places. The argument here was that this process would facilitate for the improving of the quality and completeness of the data on marriages and divorces.

2.3 An important recommendation made was that the current computer systems of the Department of Home Affairs would need to be changed to incorporate the new Act and make room for the recognition of religious marriage and divorces. A suggestion raised was that there is a need to study not only how the computer systems in KwaZulu/Natal were developed to accommodate the recognition of customary marriages but perhaps to look at countries were the recognition of customary and religious marriages is being practiced and administrative systems already exist.

3. Revision of the Divorce Form

3.1 A recommendation put forward was the need the need for a more user-friendly divorce form as a way of discouraging parties dissatisfied with the nature of the existing forms from creating their own forms to register divorces.

3.2 The revised divorce form, which was introduced on 3 May 1999. The following recommendations for changes to the form were included:

identity number of both husband and wife: While the form allows for the applicant to produce all necessary personal information the confidentiality clause (sub-section 12) of the Divorce Act of 1979 prohibits Stats SA from publishing the names, identity number and addresses of plaintiffs and defendants in divorce proceedings. The Act caters for the recording of the data but strictly prohibits Stats SA from publishing or releasing such details.

age at time of divorce;

date of separation;

revision of the choices of responses as to where the marriage was solemnised. This now takes into account customary rites and religious venues in the solemnisation of marriages;

revision of the section on the type of marriage contract that the couple entered into to reflect whether it was in or out of community of property, and including or excluding the accrual system;

the age and gender of minor children from the marriage. Previously, only the number of children was recorded. The form now stipulates that minor children refer to children under the age of eighteen. This stipulation falls in line with the United Nations Convention on the Rights of the Child and the South African law’s redefining of a child as an unmarried minor under the age of 18. Article 9 of the Convention, also looks at the States responsibility to record and provide relevant statistical information. Therefore the new form places emphasis not just on the number of minor children but on their ages and gender.

Not all of the proposals for the revision of the divorce form could be incorporated. The Women’s Lobby felt that the issue of the number of times widowed or divorces and the different reasons for previous divorces should be included on the revised form. It was felt that to incorporated these questions into the form may be construed by the divorce parties as being too personal in nature and in some cases could lead to misinformation being given or parties may choose not to answer the question at all. The confidentiality clause (sub-section 12) of the Divorce Act of 1979 prohibits Stats SA from probing beyond the question of the number of times married.

APPENDICES

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APPENDIX 1

Summary of Opening Address

Dr. Ros Hirschowitz


The Vital Statistics Sub-directorate falls under the Research and Development Directorate. At Statistics South Africa we are engaged in a process of improving all our statistical collections and this includes many aspects of Vital Statistics.

With regard to improving the marriage and divorce statistics up until 1991 the only statistics that were collected, were for the so-called Whites, Coloureds and Indians and there were no statistics collected on African marriages and divorces. Now with new legislation and democracy, we have to move towards collecting statistics on customary marriages. We have to respect all marriages equally and also how we have to move in terms of collecting statistics on other religions, for example religions that were not previously recognised as being legal marriages in this country. The new Act enables us to collect statistics on everybody. We have to understand the programmes and processes of marriages in other kinds of cultures, particularly in our own indigenous cultures and we have to start capturing that type of information.

And then, as far as divorces are concerned, here, we also have to look at:

• What we need to know about divorces?

• How we should be collecting it?

• How it is best used?

• What we need to actually collect?

• How do we recognise divorces other than divorces that go through courts?

So we need to look at these sorts of issues because we’re moving into new territory, new statistics that have not been collected before.

Now one of the challenges for us in this kind of group is to bring together the statistics from household surveys and actual registration. We are aware that in this country vital events are under recorded and under reported. How we can make sure that what we are collecting and finding out in household surveys fits in and brings the registers together and harmonises and identifying the faults in the registers and where they are?

Data harmonisation would be the main way in which the links between Vital Statistics and Research and Development happens; for example calculating projections of the population based on the new population census. These kind of movements away from just collecting statistics, to collecting and interpreting statistics that people could actually use them, is the main direction that we are taking in Research and Development. And is also the direction that we are taking in general in Statistics South Africa.

APPENDIX 2

National Workshop on Marriages and Divorces:

Towards Improving the Registration of Marriages and Divorces in South Africa

Statistics South Africa, Pretoria, Wednesday 24th February 1999

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9:00-9:30 Registration

Session 1: Opening and Introduction

9:30-9:40 Opening remarks - Dr. Ros Hirschowitz

9:40-9:50 Purpose of the workshop and expected output - Dr. S. Bah

9:50-10:05 The Customary Marriages Act: Background and rationale

- Prof. T. Nhlapo

10:05-10:20 Tea break and press briefing

Session 2: Background papers – Chair: Dr. Ros Hirschowitz

10:20-10:35 The improvement of marriages and divorces statistics in South

Africa: Relevance, challenges and pitfalls - Dr. S. Bah

10:35-10:50 How can statistics on marriages and divorces help us to understand

the state of the South African family and household?

- Ms Debbie Budlender

10:50-11:00 Divorce statistics and implication for welfare planning

- Dr. Maria Mabetoa

11:00-11:20 Discussion

Session 3: Marriages and divorces registration forms and processes- Chair: Mr. P. Lehohla

11:20-11:30 The process of registration of marriages and divorces in South

Africa: Highlights of changes in the 1990s - Dept of Home Affairs

11:30-11:40 Contents of the marriages certificate and the divorce forms and

coding practices at the Stats SA

- Ms E. Venter and Ms Mary Kganakga.

11:40-11:50 Computer systems for marriages and divorces: past practice and future direction- Ms Elsie Mentz


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Session 4: Panel discussion - Chair: Dr S. Bah

12:00-12:30 The role of various stakeholders in the improvement of marriages and divorces statistics


12:45-13:30 Lunch

Session 5: Workgroup discussions: Facilitator- Mr Edward Mokwena/ Mr David Ndegwa

13:30-14:15 Workgroups

Review of the current contents of the divorce form to reflect emerging concerns

Suggestions on how to register customary marriages and divorces

Suggestions on how to improve the registration of religious marriages and divorces.

Session 6: Reports from workgroups - Chair: Dr Eric Udjo

14:15-14:45 Presentations


15:05-15:15 Tea break

Session 7: Rounding up Chair - Ms Debbie Budlender

15:15-15:25 Achievement of the workshop and way forward - Dr S. Bah

15:25-15:30 Closing remarks - Dr Ros Hirschowitz

APPENDIX 3

PARTICIPANTS OF THE WORKSHOP

Nearly 40 participants consisting of researchers and academics attended the workshop. Table 1 contains the profile of the institutions and organisations. A list of the participants is provided.

Table 1. Profile of Institutions, and Organisations

Institutions and Organisations

Parastatal Organisations

- Statistics South Africa

- Human Sciences Research Council

- South African Law Commission

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Participant Register

- Office of the Family Court

Government Departments

- Department of Home Affairs

- Department of Welfare

Research NGO’s

- Community Agency for Social Enquiry (CASE)

- UNICEF

Universities

- University of Pretoria

Denominations

- Muslim Religious Leaders

- Mulujis Ulema

Dr. S. Bah


Private Bag X44

Pretoria

0001

Tel: (012) 310 8678

Cell: 083 305 5781

Fax: (012) 328 5586

E-mail: [email protected]

Ms. N. Bomela

University of Pretoria

Tel: (012) 420-3299

Fax: (012) 420-2873


Ms. D. Budlender

Community Agency for Social Enquiry

20 Alfred Street

Observatory

Cape Town

7925

Tele: (021) 447 9852

Cell: 082 579 6697

Fax: (021) 448 6185

Ms. T. Daniels


Provincial Office

Private Bag X9072

Cape Town

8000

Tele: (021) 423 1040

Cell: 083 305 27773

Fax: (021) 22 1741

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E-mail statssa: [email protected]

E-mail CASE : [email protected]


Mr. W. De Jonge


Civitas 242 Struben Street

Private Bag X14

Pretoria

0001

Tele: (012) 314 8647

Fax: (012) 321 5110


Mrs. R. Du Plessis


Private Bag X44

Pretoria

0001

Tele: (012) 310 8227

Fax: (012) 328 5586


Sheik M.A. E. Dockrat

Jamiatul-Ulama

Transvaal

Tele: (011) 834 2859

Fax: (011) 838 2769



Mrs. W. Govender


Private Bag X543337

Durban

4000

Tele: (031) 305 3904

Fax: (031) 306 0072


Prof. J. Kahimbaara


Private Bag X44

Pretoria, 0001

Tel: (012) 310 8635

Cell: 083 305 5428

Fax: (012) 320 2109


Ms. M. Kganakga


Private Bag X44

Pretoria

0001

Tel: (012) 310 8223

Fax: (012) 328 5586


Mrs. C. Kruger Mr. S. Ledwaba

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Private Bag X5053

Kimberley

8300

Tele: (053) 8333965

Fax: (053) 8325407



Private Bag X44

Pretoria

0001

Tel: (012) 310 8172

Fax: (012) 328 5586


Mr. P. Lehohla


Private Bag X44

Pretoria

0001

Tel: (012) 310 8335

Cell: 082 893 8317

Fax: (012) 320 3618


Dr. M. Mabetoa


Private Bag X901

Pretoria

0001

Tele: (012) 312 7546

Cell: 082 809 0675

Fax: (012) 323 3733

Mr. T. Mantshidi


Provincial Office

P. O. Box 7798

Johannesburg

2000

Tele: (011) 331 0122

Fax: (011) 331 0260


Mr. M. Mazibuko


Free State

Cell: 083 271 8396

Fax: (051) 447 8402

E-mail: ma’[email protected]

Dr. L. Mbatha

CALS: Wits University

Private Bag 3

Wits

Mrs. E. Mentz


Private Bag X44

Pretoria

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2050

Tele: (011) 403 6918

Fax: (011) 43 2349


0001

Tel: (012) 310 8193

Fax: (012) 328 5586


Sheik Imaam Sayeed Mohamed

Queen Street Mosque

Pretoria

Tele: (012) 328 5283

Fax: (012) 323 8711

Mr. E. Mokwena


Private Bag X44

Pretoria

0001

Tel: (012) 310 8014

Fax: (012) 328 5586


Ms. H.E. Mostert


Private Bag X14

Pretoria

0001

Tele: (012) 314 8646

Fax: (012) 321 5110


Mr. A. Naidoo


Mpumalanga

Cell: 083 3055 750

Fax: (013) 755 2898


Mr. D. Ndegwa


Private Bag X44

Pretoria

0001

Tel: (012) 310 8014

Fax: (012) 328 5586

Prof. R. T. Nhlapo

SA Law Commission

Tele: (012) 322 6440

Fax: (012) 320 0936


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Prof. K. Oosterhuizen


Tele: (012) 468 521

Fax: (012) 420 2873


Dr. Heston Phillips

HSRC

Tele: (012) 302 2209

Fax: (012) 302 2249


Ms. R. Ramphenyae


Private Bag X901

Pretoria

0001

Tele: (012) 312-7786

Fax: (012) 323 3733

Ms A. Stofberg



Dr. S. Ubombo-Jaswa


Tele: (012) 420 2708

Fax: (012) 420 2708


Dr. E.D. Udjo


Private Bag X44

Pretoria

0001

Tel: (012) 310 8636


Mrs E. Venter


Private Bag X44

Pretoria

0001

Tel: (012) 310 8248

Fax: (012) 328 5586


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