PROPRIETARY CONSEQUENCES OF CUSTOMARY MARRIAGES
The consequences of a customary marriage differ according to whether the marriage was entered into before or after the commencement of the Act. For marriages entered into before the commencement of the Act, the proprietary consequences continue to be governed by customary law, unless an application is made to change the property regime in terms of section 10 of the Act.
For marriages entered into after the commencement of the Act the proprietary consequences will depend on whether the marriage is monogamous or polygamous.
Customary marriages in existence before the commencement of the Act
Section 7(1) provides that the proprietary consequences of a customary marriage entered into before the commencement of the Act will continue to be governed by customary law. The question, however, is which customary law?
The concepts of "in community or out of community of property" are unknown in customary law.
For purposes of the administration of estates, the Master will regard customary marriages entered into before the commencement of the Act as being out of community of Property.
The Act allows spouses married under customary law prior to Act to apply to a court to change their marital property regime. Section 7(4) requires the application for change to be made by both the husband and the wife. The court will grant the application if:
(a) there are 'sound' reasons for the change;
(b) written notice is given to all creditors owed amounts of over R500,00;
(c) no one will be prejudiced by the change.
If the husband has other spouses in a polygamous marriage, they must be joined in the proceedings to ensure that their rights are protected.14 Other parties who have interests in the marital property must also be joined, including the dependants of the husband and anyone else who will be affected by the change.
Customary marriages entered into after the commencement of the Act
Monogamous customary marriages
In terms of section 7(2) of the Act the marriage property arrangement of a monogamous customary marriage is that of a marriage in community of property and of profit and loss. Monogamous customary marriages concluded after the commencement of the Act thus have the same consequences as a civil marriage.
The spouses to a monogamous customary marriage can marry out of community of property, provided they enter into an antenuptial contract.
Where the marriage is in community of property, it must be noted that the provisions of Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 88 of 1984, apply to the customary marriage.
Polygamous customary marriages
A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of the Act, must comply with the requirement of section 7(6) of the Act, in addition to the general requirements set out in section 3 of the Act. He must make an application to court to approve a written contract which will regulate the future matrimonial property system of his existing marriage and the prospective one.
In view of the fact that the Act now provides for polygamous marriages in respect of indigenous African people of South Africa, the Master should take cognizance of this fact and ensure that the rights of all the spouses (where there is more than one marriage) is protected in the course of the administration of the estate.
The Master will call for the written contract which regulates the deceased's marriages, duly approved by the court, if the death notice indicates the following:
- the deceased was married under customary law;
- the marriage is polygamous;
- the second or subsequent marriage was concluded after the commencement of the Act (15 November 2000).
In terms of section 8(1) of the Act 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.
As with all other estates administered by the Master, a copy of the divorce order and any settlement between the parties, which has been made an order of court, must be called for in appropriate circumstances, e.g. to establish whether the deceased estate is liable for future maintenance.
THE RELATIONSHIP BETWEEN CIVIL AND CUSTOMARY MARRIAGES AND THEIR IMPACT ON ESTATES
The practice of combining customary with civil ceremonies is common in South Africa, and many variations are possible. The spouses may celebrate a customary marriage and, on the same day, or a short while later, have it solemnized again in a civil registry office. The rites may also be reversed, when a civil marriage is followed by a traditional wedding. Dual marriages by the same spouses entered into prior to the Recognition of Customary Marriages Act, 120 of 1998 created few legal problems, because the customary union was not recognized and the civil marriage was simply allowed to prevail.15
Where, however, a spouse (normally the husband) purported to marry a third person by different rights, the situation is more complicated. A migrant worker, for instance, might marry one wife in the country according to customary law, and another in the city according to civil rites. The husband, thinking in terms of his customary right to take many wives, might have been unaware of the legal implications of his actions, or a more calculating man, however might have deliberately kept his wives in the dark.
Because the Recognition of Customary Marriages Act is not retrospective in effect, marriages contracted prior to the Act are still governed by rules that applied before it came into force on 15 November 2000. These rules can be divided into four (4) categories.
Subsequent civil marriage by the spouse of a subsisting customary union to a third person: Situation before 2 December 198-Areas outside the Transkei
Only civil marriages were deemed proper marriages, and consequently where a husband in a subsisting customary union were to marry a third person or one of his existing polygamous wives by civil rites, the civil marriage automatically superseded and extinguished the prior customary union(s). These consequences caused great hardship for the 'discarded' customary wife and children.16
Section 22(7) of the Black Administration Act, 38 of 1927, however, provided some measure of protection to the discarded family when the husband died. For purposes of succession, the status of the widow and children of the civil marriage were deemed to be equivalent of their customary-law counterparts. By implication, the preferential status given the civil-law wife and children was lost and they ranked equally with the prior discarded wife (or wives) and their children.
If the Master's Office or Service Point is confronted with a situation as set out above after the Bhe decision,17 it should be noted that both the discarded wife and the civil-law wife will be deemed spouses of the deceased for purposes of intestate succession.
Subsequent civil marriage by the spouse of a subsisting customary union to a third person: Situation after 2 December1988 until 15 November2000
Areas outside the Transkei
In 1988 the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, which came into operation on 2 December 1988 provided that, although partners to a customary union could marry one another again by civil rites, a spouse could not validly marry a third person by civil rites during the subsistence of the customary union. Should a spouse in a customary union purport to enter into a civil marriage without first dissolving the customary union, the civil marriage will be invalid. This was confirmed in Thembisile and Another v Thembisile and Another.18
When confronted with a situation as set out above, the Master or Service Point would have to determine which of the marriages (customary or civil) was invalid at the date of death of the deceased. If the deceased entered into a customary union (first Marriage) with wife A and then into a civil marriage with wife B, without first dissolving the customary union, then the civil marriage is invalid and the customary union is the only valid marriage. If the customary marriage was dissolved before the civil marriage, then the civil marriage will be the only valid marriage.
Dual marriages in Transkei
The 1978 Transkei Marriage Act, 21 of 1978 allowed the husband of a subsisting civil marriage to contract additional customary marriages, provided that the civil marriage was out of community of property. Likewise, a husband in a customary union, could also during the subsistence of such customary union validly contract a civil marriage with a third person, provided the civil marriage was out of community of property.
Thus, when the Master or Service Point is confronted with dual marriages concluded in terms of the Transkei Marriage Act, both the civil and customary law spouses would be deemed spouses for purposes of intestate succession.19
The position after 15 November 2000
The Recognition of Customary Marriages Act, 120 of 1998 came into operation on 15 November 2000 and revoked section 22(1) to (5) of the Black Administration Act, and the provision in the Transkei Marriage Act that permitted dual marriages.
Section 2(1) of the Recognition of Customary Marriages Act determines that a marriage which is a valid marriage at customary law and existing at the commencement of the Act, is for all purposes recognized as a valid marriage.
Section 10(1) provides that a man and a woman between whom a customary marriage subsists are competent to contract a civil marriage with each other if neither of them is a spouse in a subsisting customary marriage with any other person.
Section 10(4) provides that despite subsection (1), no spouse of a civil marriage is, during the subsistence of such marriage, competent to enter into any other marriage, albeit civil or customary.
The Act thus confirms that spouses married by customary union may not enter into a civil marriage if either of them is a spouse in a subsisting customary marriage with any other person. The same holds for spouses married under civil rites. They may not enter into a customary union.
The Department of Home Affairs who is responsible for the registration of customary marriages has ceased to register marriages subsequent to the dates referred to in section 4 and thus the matter has to be referred to court for verification of the marriage should the marriage not have been registered timeously. This is causing undue hardship for the parties who have entered into customary marriages.
- Section 7(4)(b)
- Bennet Customary Law in South Africa (2004) 236.
- Nkambula v Linda 1951 (1) SA 377(A).
- Bhe and Others v Magistrate Khayelitsha and Others 2005(1) SA580 (CC) handed down on 15 October2004.
- 2002(2) SA209 (T).
- In Khambule v The Master and Others 2007 (3) SA 403(E) it was held that the failure of parties to register the customary marriage in terms of the Transkei Marriage Act does not affect the validity thereof.