By: William Mogale Sekgala 9 February 2022
Previously marriages concluded in terms of Muslim rites/ customs (Sharia Law) were not recognised by South African law i.e. the Marriage Act, the Divorce Act and the Common Law.
Muslim customary marriages were viewed as potentially polygynous and thus contra bonos mores (contrary to good morals).
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.