By: Lerato Mokoena 4 February 2022
Customary marriages entered into and celebrated in accordance to the customary law are valid. The default matrimonial property regime for monogamous customary marriages is a marriage in community of property and of profit and loss, unless the parties enter into an antenuptial contract.
However, the matrimonial property regimes and the consequences thereof have given rise to a lot of uncertainty and litigation. The law however, through the Recognition of Customary Marriages Act 120 of 1998 (RCMA) and case law have been instrumental in providing clarity in this important area especially its implication on women who historically were prohibited from owning property and had limited contractual capacity in relation to the joint estate.
According to Section 7 (6) of the Recognition of Customary Marriages Act 120 of 1998 – A husband in a customary marriage who wishes to enter into a further customary marriage with another woman must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages (whether the subsequent customary marriage would be in or out of community of property).
It is quite common in South Africa to find a husband in a customary marriage entering into a second or further customary marriage without following proper legal procedures as stipulated in Section 7(6).
Certain questions may arise from the above statement, namely:
- Firstly, would the subsequent customary marriage be invalid if Section 7(6) is not followed?
- And secondly, if the subsequent customary marriage would not be invalid, would it be in community of property or out of community of property?
If the husband wishing to conclude a further customary marriage fails to follow the requirements of Section 7(6) the subsequent customary marriage would be valid, but it will automatically be out of community of property (Ngwenyama v Mayelane).
Section 7(6) is primarily concerned with the protection of property interests of women in both existing and prospective further customary marriages.
Therefore, it is important when entering into further customary marriage(s), to make an application to court to approve a written contract that will regulate the property regime of any further marriage.