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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Accommodating gender, race, culture and religion: outside legal subjectivity
Author:Bonthuys, ElsjeISNI
Periodical:South African Journal on Human Rights
Geographic term:South Africa
Subjects:customary law
family law
women's rights
Islamic law
Law, Legal Issues, and Human Rights
Cultural Roles
Marital Relations and Nuptiality
Religion and Witchcraft
External link:https://doi.org/10.1080/02587203.2002.11827643
Abstract:In both customary and religious law in South Africa, the State is faced with the choice of either creating a single system of marriage law for all religious and cultural groups, or maintaining separate systems to cater for different sectors of the population. In making this choice, issues of gender equality and the recognition of religious and cultural rights invariably surface. This paper examines issues relating to the recognition of religious and cultural systems of family law by way of an analysis of two cases - dealing with the validity of potentially polygamous Muslim marriages, and custody of a two-year-old boy of African parents who had concluded a civil marriage, respectively - that represent the two most frequently suggested 'solutions', namely unification of family law and pluralism. Using elements of feminist standpoint analysis and postmodernism, the construction of the ideal legal subject established in the cases, as well as its implications for women, is interrogated. The paper then makes some observations about the nature of South African family law after the adoption of the 1996 Constitution. Notes, ref., sum. [Journal abstract]