Does a customary law marriage nullify further marriages entered into with a different spouse?

November 1st, 2020
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The dissolution of customary marriages has been a hot topic of debate in South African law. What was once a mere separation and desertion to symbolise an irretrievable breakdown and dissolution of the marriage now has stringent legal requirements to abide by in order to be considered dissolved.

It is a common fact that most indigenous people in South Africa who are married in accordance with customary law in terms of the Recognition of Customary Marriages Act 120 of 1998 (the Act) deem informal separation and desertion as dissolution of marriage, and therefore, do not even obtain divorce orders. This has consequences in respect of subsequent marriages and various matrimonial property regimes.

This article highlights the consequences that a subsequent marriage entered into while a customary marriage with a different partner still subsists.

Dissolution of marriage in terms of the Act

The Act makes provision as to how customary marriages are dissolved. Section 8(1) provides that 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’. This alone indicates that mere separation will not exclude proprietary consequences in community of property, which will then apply automatically.

South African courts have over the years recognised customary marriages and have granted benefits to spouses who would ordinarily be granted to spouses in civil marriages. This can be seen in the recent Constitutional Court judgment, wherein the court confirmed that s 7(1) and (2) of the Act are unconstitutional because it resulted in the wives, in customary marriages, having no marital property rights. Since 30 November 2019, all customary marriages entered into before or after the commencement of the Act are in community of property subject to the accrual system (see Ramuhovhi and Others v President of the Republic of South Africa and Others 2018 (2) SA 1 (CC)).

Exclusion of matrimonial property rights

It is important for South African laws to recognise the customs practised in our society, in doing so, a balance must be established to ensure that the rights of vulnerable women in customary marriages are protected. The exclusion of matrimonial property consequences can no longer exist by operation of law unless the parties have entered into an antenuptial contract.

At present, the approach adopted in the Constitutional Court case of Gumede v President of Republic of South Africa and Others 2009 (3) SA 152 (CC), regarding spouses in a monogamous customary marriage before the commencement of the Act, are now deemed to be in community of property.

The law clearly stipulates that customary marriages entered into after the commencement of the Act in which a spouse is not a partner in any other existing customary marriage, and where the spouses have not entered into an antenuptial contract amounts to an in community of property marriage, in which the couple jointly own the assets and liabilities of the joint estate (s 7(2) of the Act).

Subsequent customary law marriage

If a spouse in a customary marriage wishes to enter into a further customary marriage, the spouse will have to approach the High Court to approve a written contract, which will regulate the future matrimonial regime (s 7(6) of the Act). However, failure to get the High Court’s approval of the contract does not mean the marriage is invalid. The further customary law marriage shall still be valid, but it is out of community of property (see Ngwenyama v Mayelane and Another 2012 (4) SA 527 (SCA)).

Further civil marriage

Many couples tend to take a break after the conclusion of the customary marriage and, thereafter, enter into a civil marriage. The further civil marriage will have no effect on the validity of the customary marriage or the property regime (s 10(1) and (2) of the Act). The problem arises when the spouse to an existing customary law marriage wishes to enter into a civil marriage with somebody else. Such a civil marriage shall be invalid (s 3(2) of the Act).

This position was confirmed by the Supreme Court of Appeal case of Monyepao v Ledwaba and Others (SCA) (unreported case no 1368/18, 27-5-2020) (Plasket JA (Petse DP, Saldulker and Nicholls JJA and Koen AJA concurring)), which is the leading authority on the effect of a civil marriage to another person while a customary marriage subsists.

In this case, the appellant (second wife) was married to the deceased in terms of customary law. During the subsistence of the marriage, the deceased was, however, still married to his first wife in terms of customary law. On marrying the second wife, the deceased and his first wife never got divorced, but merely separated. The court found that the deceased’s first marriage was still valid, and the first wife can enjoy patrimonial benefits.

Conclusion

Spouses in customary law marriages are cautioned that just like in civil marriages, customary law marriages must be dissolved by a court of law to avoid far-reaching matrimonial property consequences. For those matrimonial property consequences to be excluded, spouses’ in customary law marriages must now conclude an antenuptial contract.

Spouses should also be aware that no law restricts them from entering a civil marriage. However, the only requirement is that there is no other person married to either of the spouses in terms of customary law marriage.

Petrus Khumalo LLB (UP) is a candidate legal practitioner at SchoemanLaw Inc in Cape Town.

This article was first published in De Rebus in 2020 (Nov) DR 7.