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Prof. Dr. Christa Rautenbach

North-West-University, Potchefstroom (South Africa)

Curriculum Vitae

Prof. Dr. Christa Rautenbach is a legal scholar. After graduating, she first worked as a public prosecutor at the Department of Justice, South Africa. In 1994 she became a lecturer at North-Western University, Potchefstroom, where she obtained her doctorate in 2001. From 2000 to 2004, Christa Rautenbach was Associate Professor, before she was appointed as a Professor at the Law Faculty of North-Western University in 2005. She holds numerous positions in various organizations and commissions. Among others, she is honorary treasurer of the Society of Law Teachers of Southern Africa, alumnus and ambassador scientist of the Alexander von Humboldt Foundation, and former president of the Alexander von Humboldt Association of Southern Africa (North-Eastern Chapter). Furthermore, Prof. Rautenbach is a member of the Advisory Board of the African-German Network of Excellence in Science (AGNES). In 2018, Christa Rautenbach was appointed as a member of the Advisory Committee of the South African Commission on Legislative Reform as part of the project Single Marriage Statute Including Measures against Sham Marriages. She was chosen as the chairperson of the Committee in 2020. Prof. Rautenbach is co-editor and co-author of the two leading publications in South Africa Introduction to Legal Pluralism in South Africa and The Law of Succession in South Africa. She is also editor-in-chief of the Potchefstroom Electronic Law Journal, as well as a member of the advisory board of several journals, including the Journal of Comparative Law in Africa (South Africa), the Journal of Civil Law Studies (Louisiana) and the Journal of International and Comparative Law (United Kingdom).

From mid-September 2020 to mid-March 2021, Prof. Dr. Christa Rautenbach was a Fellow at the Käte Hamburger Center “Law as Culture”, Bonn.

Research project

„Plurality of Marriage Laws: Exploring the Viability of a Single Marriage Codefor South Africa in a Comparative Context“

South Africa has an incredibly diverse community made up of various - generally incompatible - religious and cultural groups with different normative values and languages that follow different customs and practices. After a long history of European settlement, the modern South African legal system is a pluralistic legal one consisting of state and non-state laws, but this mix does not always work in perfect unison. Under the influence of the democratic Constitution that South Africa adopted in 1996, family law norms and values, previously viewed as incontestable, such as monogamy and heterosexuality, are nowadays frequently challenged, and family law is struggling to keep up with a multifaceted society on the move. Instead of developing the existing Marriage Act of 1961 to accommodate this diversity, the South African government favoured a plurality of laws giving effect to a variety of marriage-like relationships. To date, four types of relationships are recognized: monogamous common-law marriages in terms of the Marriage Act 25 of 1961; monogamous and polygynous customary law marriages in terms of the Recognition of Customary Marriages Act 120 of 1998; monogamous civil union marriages, including same-sex marriages in terms of the Civil Union Act 17 of 2006; and specific consequences of monogamous and polygynous religious marriages despite them not forming part of state law.

The plurality of marriage laws could certainly be seen as a celebration of diversity, but it also creates a considerable amount of legal uncertainty. Furthermore, given the diversity of the South African population, it is virtually impossible to enact legislation governing every marriage-like relationship without the whole marriage system becoming unmanageable. The management of diversity in family law is a headache, especially for state organs ill-equipped to deal with the changes and diversity challenges. Legal practitioners do not have the advantage of a single code of family law. They have to look for applicable rules in a variety of statutes, case law, common-law (an uncodified mix of Roman-Dutch and English law), customary law, and custom. Even if they find the appropriate rules, there is no guarantee that it will survive a constitutional challenge or judicial scrutiny.

South Africa is not the only country struggling with the management of diversity in family law. The achievement of family justice in diverse cultural and religious societies remains a highly topical and vibrant theme globally. Formerly homogenous societies are increasingly diversifying as a result of globalization, especially in Europe, where governments are progressively faced with the challenges migrant cultural and emergent religious groups pose to existing legal frameworks. Yet, to assume that historically diverse communities know all the answers because of their exposure to cultural and religious differences over a more extended period, would be an error. The failure of many governments to effectively manage family justice in diverse societies is testament to the fact that existing policies and legal frameworks do not always work. The purpose of this research is to examine global responses to diversity in family law. The main aim is to explore the viability of a unified or omnibus marriage code as proposed by the South African government. The focus will be on the question of whether South Africa should opt for an omnibus or single marriage code and, if the answer is in the affirmative, what the content of such a code should be.

Publications (selected)

  • Rautenbach, C.: “The Influence of Foreign Judgments on the Development of Post-Apartheid Constitutional Law in South Africa: Judicial Law-Making in Action?”, 2020 Journal of International and Comparative Law, 1-27.
  • Rautenbach, C.: “Cultural Expertise in Litigation in South Africa: Can the West Learn Anything from South Africa?”, 2019 Studies in Law, Politics, and Society: Cultural Expertise and Socio-Legal Studies, 157-178.
  • Rautenbach, C. (ed.): In the Shade of an African Baobab: Tom Bennett’s Legacy (Cape Town Juta 2018).
  • Rautenbach, C. (ed.): Introduction to Legal Pluralism in South Africa (2018 Durban LexisNexis).
  • Rautenbach, C: “A Family Home, Five Sisters and the Rule of Ultimogeniture … Comparing Notes on Judicial Approaches to Customary Law in South Africa and Botswana”, 2016 African Human Rights Law Journal, 145-174.
  • Rautenbach, C.: “Thinking about Norms in Pluralistic Societies: Blurred Lines between the ‘Legal’ and the ‘Social’ of Pluralist Normative Orders” in Albarian A and Moréteau O (ed.): Le droit comparé et… / Comparative Law and … (Aix Presses Universitaires d’Aix-Marseille 2016), 107-115.
  • Rautenbach, C: “The Contribution of the Courts in the Integration of Muslim Law into the Mixed Fabric of South African Law” in Mattar M, Palmer V & Koppel A (eds.): Mixed Legal Systems, East and West (Ashgate 2015), 225-244.
  • Rautenbach, C.: “The Modern-Day Impact of Cultural and Religious Diversity: Managing Family Justice in Diverse Societies”, 2014, Potchefstroom Electronic Law Journal, 520-552, accessible at https://journals.assaf.org.za/per/article/view/2424.
  • Rautenbach, C. & Du Plessis W.: “African Customary Marriages in South Africa and the Intricacies of a Mixed Legal System: Judicial (In)Novatio or Confusio?” 2012(57)4 Mc Gill Law Journal, 749-780
  • Rautenbach, C: “Deep Legal Pluralism in South Africa: Judicial Accommodation of Non-State Law in South Africa”, 2010(60) The Journal of Legal Pluralism and Unofficial Law, 143-178