In the distribution of death benefits or approval of payment to non-member spouses in divorce claims, boards of management often deal with customary marriages.

The Recognition of Customary Marriages Act 120 of 1998 (“RCMA”) was amended on 1 June 2021, which changed the proprietary consequences of customary marriages.

Background

Prior to the coming into operation of the RCMA in November 2000, customary marriages were recognised for limited purposes and the marriages were not solemnised in terms of the Marriages Act.

The RCMA conferred full legal recognition on customary marriages, regardless of when the marriages were concluded. However, the requirements for and the consequences of the customary marriage differ, depending on whether they were entered into before or after the coming into operation of the RCMA.

Customary marriages entered into before the RCMA (November 2000)

Marriages entered into before the RCMA came into operation preserve the old customs and consequences of a customary marriage. The marriage was valid if it complied with the customary law requirements for a valid marriage.

For the majority of the customs, the requirements were as follows:

Irrespective of the bride and groom’s age, they and the bride’s father had to consent to the marriage.
The bride had to leave her family to live with her husband and lobola had to be delivered to the bride’s family.

A celebration of the marriage was often held, but it was not a requirement for the validity of the marriage.

A customary marriage entered into before the commencement of the RCMA had to be registered at the Department of Home Affairs before 15 November 2002. However, the non-registration of these marriages does not affect the validity of the marriage.

The patrimonial consequences of marriages entered into before November 2000, where said marriage was not registered by November 2002, were and remain governed by customary law. Monogamous marriages that took place before the commencement of the RCMA were automatically out of community of property.

For couples in polygamous marriages, a ranking system was used and the marriages were ranked according to the date of marriage, with the first wife being the main wife and the husband being the head of all the houses.

This means that all the houses and property of all the wives formed part of one estate, with the husband as the family head in control of all family property.

Customary marriages entered into after the enactment of the RCMA

The requirements for valid customary marriages concluded after the commencement of the RCMA are as follows:

The bride and the groom must both be over the age of 18 and they must both consent to the marriage. Where either of the spouses is younger than 18, the parent or legal guardian can consent to such marriage.
The marriage must be negotiated and entered into, or celebrated in accordance with customary law.

A customary marriage concluded after the commencement of the RCMA, must be registered within three months after such conclusion, or within such longer period as determined by the Minister from time to time in the Gazette.

Although the RCMA provides for registration, it is not a requirement for a valid customary marriage. A registration certificate serves as prima facie proof of the existence of a customary marriage and of the particulars contained therein. It therefore makes it easier to prove the existence of a marriage.

A monogamous customary marriage entered into without an antenuptial contract means that the couple is automatically married in community of property. The patrimonial consequences of marriages entered into after the commencement of the RCMA means that the wife’s status and capacity, including capacity to acquire assets and to dispose of the assets, was restricted to the matrimonial property system which operates in the marriage.

This meant that in most cases, the husband remained the family head and controlled the family property. This resulted in the wife’s capacity to acquire and deal with property and her capacity to perform legal actions on her own, still being restricted.

A husband who has a customary wife and wants to enter into a polygamous marriage must, prior to the celebration of the new marriage, obtain the court’s approval of a written contract regulating the future matrimonial property system of his marriages.

In the case of Ngwenyama v Mayelane, the Supreme Court of Appeal held that a failure by a husband in a polygamous marriage to obtain the court’s approval of a written contract regulating the future matrimonial property system of his marriages, will not render the subsequent marriage/s null and void. Instead, such failure will render the subsequent marriage/s to be marriages out of community of property.

Section 8 of the RCMA provides that a customary marriage may only be dissolved by a court by a decree of divorce, irrespective of whether the marriage was concluded before or after the commencement of the RCMA. The RCMA provides that a divorce order dissolving the customary marriage can be obtained only from a high court, a family court, or a divorce court.

The RCMA however, does not deal with the dissolution of customary marriage by death. This is usually because the death of the wife in a polygamous household does not necessarily dissolve and/or destroy that household.

Changes brought about by the Recognition of Customary Marriages Amendment Act

With effect from 1 June 2021, the RCMA was amended and spouses married under customary law will now be entitled to a share of the joint estate on either the death of their spouse, or when they divorce.

All customary marriages, whether entered into before or after the enactment of the RCMA, will be regarded as marriages in community of property, unless it is set out differently in an antenuptial contract.

Therefore, this will exclude couples who are customarily married out of community of property and have an antenuptial contract excluding community of profit and loss.

For couples who choose to enter into a customary marriage in future, it means that if they do not have an antenuptial contract, they will by default be married in community of property. This will apply to both polygamous and monogamous customary marriages and includes polygamous or monogamous marriages entered into before November 2000, when the RCMA came into effect.

The proprietary consequences of a customary marriage in which a person is a spouse in more than one customary marriage, including those entered into before the commencement of the Recognition of Customary Marriages Amendment Act, are that the spouses in such a marriage will now have joint and equal ownership and rights of management and control over matrimonial property.

This means that a spouse will have rights in respect of the house and property of “her” house and joint rights in respect of all family property, with the husband and the other wives.

These women will now have the same rights and status in terms of their lawful entitlement to their share of their partner’s estate and be classified as married in community of property.

The way customary marriages are concluded or celebrated has not changed. What has changed is that women in customary marriages will now have the same rights and status as other women and men married in terms of the Marriage Act in South Africa and will not be discriminated against.

Customary spouses must upon divorce obtain a divorce decree and divorce settlement agreement allowing them to split pension interest and enable them to claim against each other’s retirement fund benefits.

ENDS

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