WHAT IS A CUSTOMARY MARRIAGE?
A customary marriage is defined in the Act[1] as a marriage concluded in accordance with customary law which are the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.
ARE CUSTOMARY MARRIAGES STILL RECOGNISED?
Customary marriages are recognised in terms of section 15 (3) (a) (i) of the Constitution. In terms of said section the legislature passed the Recognition of Customary Marriages Act[2] (“The Act”) to regulate customary marriages.
DO CUSTOMARY MARRIAGES NEED TO BE REGISTERED?
In terms of Section 4 of the Recognition of Customary Marriages Act, it is stated that the spouses of a customary marriage have a duty to ensure that their marriage is registered within a period of three months after the conclusion of the marriage or within such longer period as the Minister may from time to time prescribe by notice in the Gazette.
WHAT ARE THE PROPRIETARY CONSEQUENCES OF CUSTOMARY MARRIAGES AND CONTRACTUAL CAPACITY OF SPOUSES?
The landmark case of Gumede v President of the Republic of South Africa[3] and Others dealt with the validity of certain sections in the Recognition of Customary Marriages Act.
“Elizabeth Gumede entered into a customary marriage in 1968, which was the only marriage to which the applicant’s husband was party. The marriage had since broken down irretrievably, and in January 2003 her husband instituted divorce proceedings. Mrs Gumede did not work during the marriage, but maintained the family household as well as the four children. The family acquired two pieces of immovable property during the course of the marriage with the furniture and appliances in both amounting to approximately R40 000 each[4].”
“Customary law in KwaZulu Natal has been codified in the KwaZulu Act and the Natal Code, both of which provide, in section 20, that the husband is the family head and owner of all family property. The result of the KwaZulu Act, the Natal
Code and the lack of provision in the Recognition Act is therefore that a wife to a customary marriage concluded before the commencement of the Act will in effect be entitled to nothing upon dissolution of the marriage[5].”
In paragraph 49 of the judgment Moseneke DCJ confirmed the order of constitutional invalidity issued by the High Court and stated that the government has advanced no justification for the discrimination to be found in the impugned legislation. It was held that the following provisions unfairly discriminates against the applicant on the ground of gender and are inconsistent with the Constitution and therefore invalid:
“Section 7(1) of the Recognition Act insofar as it provides that the proprietary consequences of a marriage entered into before the commencement of the Recognition Act continue to be governed by customary law.
Section 7(2) of the Recognition Act, insofar as it distinguishes between a customary marriage entered into after and before the commencement of the Recognition Act, by virtue of the inclusion of the words “entered into after the commencement of this Act”.
Section 20 of the KwaZulu Act because it provides that during the course of a customary union the family head is the owner of and has control over all family property in the family home.
Section 20 of the Natal Code because it provides that the family head is the owner of and has control over all family property in the family home.
Section 22 of the Natal Code because it provides that the inmates of a kraal are in respect of all family matters under the control of and owe obedience to the family head.”
THE CURRENT POSITION:
In terms of section 7 (2) of the Act[6], a customary marriage entered into after the commencement of the Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.
In terms of section 7 (3) of the Act[7], Chapter III and sections 18 , 19, 20 and 24 of Chapter IV of the Matrimonial Property Act[8], apply in respect of any customary marriage which is in community of property as contemplated in subsection (2)[9]. Section 21 of the Matrimonial Property Act is applicable to a customary marriage entered into after the commencement of this Act in which the husband does not have more than one spouse.
Section 20 (1) of the Matrimonial Property Act, states that a court may on the application of a spouse, if it is satisfied that the interest of that spouse in the joint estate is being or will probably be seriously prejudiced by the conduct or proposed conduct of the other spouse, and that other persons will not be prejudiced thereby, order the immediate division of the joint estate in equal shares or on such other basis as the court may deem just.
A court making an order under subsection (1) may order that the community of property be replaced by another matrimonial property system, subject to such conditions as it may deem fit[10].
HOW ARE CUSTOMARY MARRIAGES DISSOLVED?
Customary marriages are dissolved in terms of Section 8(1) and (2) of the Act[11]. A customary marriage may only be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the marriage[12]. A court may grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them[13].
SOURCES
- Recognition of Customary Marriages Act Act No. 120 of 1998
- Gumede v President of the Republic of South Africa CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC) ; 2009 (3) SA 152 (CC)
- http://www.saflii.org/za/cases/ZACC/2008/23media.pdf
- Matrimonial Property Act 88 of 1984
