(Mis)recognition of Customary Marriages: A Comparative Analysis of Canadian and South African Family Law

This paper explores the methods of recognizing customary marriages conducted between Indigenous participants within Canada and South Africa, respectively. It primarily focuses on the functional and philosophical consequences of these methods on the validity of the customary marriages. This paper begins by establishing the problem of misrecognition, which is an injustice that devalues and dehumanizes marital relationships that differ from the European norm. It then turns to an analysis of the forms of recognition in both Canada and South Africa. The former is examined through an investigation of historical case law and more recent constitutional issues, while the latter analysis focuses on statutory requirements and their interpretation by the courts. Each of the sections are followed by a substantive and functional critique of each country’s system. The final section introduces a theoretical proposal for recognizing customary marriages in Canada in a way that would best achieve justice for their Indigenous participants