The requirement of registration should be the same for all marriages. Processes for
registration should be accessible throughout the country, including in rural areas, and the
government should engage in necessary awareness-raising about the important benefits of
registration to encourage it. Those with unregistered customary unions need an avenue to
have their marriages recognized and to be given the opportunity for posthumous
recognition, without the reliance on the testimony of in-laws. Without such an avenue for
recognition and registration, the formal, civil law will continue to exclude widows in
unregistered customary unions from its protection.
The Deceased Persons Family Maintenance Act and the Deceased Estates Succession Act,
which address questions of marital property upon the death of a spouse, both appear to
provide for equal inheritance rights for women and men upon the death of a spouse.101
However, in practice, the results for widows and widowers are far from equal. The
Deceased Persons Family Maintenance Act calls for estates to be administered according
to the rules that would have applied if the marriage had ended in divorce, applying the
Matrimonial Causes Act.102 This law prohibits courts from exercising power over any
property that was acquired by inheritance or custom or property that is of “particular
sentimental value.”103 In effect, any property that a husband had inherited (and nearly all
property was inherited by men until relatively recently) continues to be out of reach for
widows. The Deceased Estates Succession Act has a similar provision.104 It provides only
for occupancy and usage rights, not outright ownership.105
The Deceased Persons Family Maintenance Act provides that any person who “does an act
with the intention of depriving another person of any [inheritance] right, or interferes with
any other person’s right … shall be guilty of an offence and liable to a fine not exceeding
level six or to imprisonment for a period not exceeding one year or to both such fine and
101 Deceased Persons Family Maintenance Act, no. 39 of 1978, cap. 6:03; Deceased Estates Succession Act, no. 16 of 1873,
cap. 6:02.
102 Deceased Persons Family Maintenance Act, sec. 7(3)(c).
103 Matrimonial Causes Act, cap. 5:13, sec. 7(3)(a, b, c).
104 Deceased Estates Succession Act,
sec. 4.
105 Matrimonial Causes Act, sec. 10(1).
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HUMAN RIGHTS WATCH | JANUARY 2017
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