For the past few months, the statistics from the De Rebus website have shown that the topic of customary marriages is one of the most read in the journal. De Rebus has published a myriad of articles that cover the intricacies involved with customary marriages. In this issue, on p 9, legal practitioner Terrance Maluleke writes that: ‘Customary marriages contracted in terms of the RCMA [Recognition of Customary Marriages Act 120 of 1998] should enjoy equal status with valid civil marriages contracted in terms of the Marriage Act [25 of 1961] and Civil Union Act [17 of 2006].’

Mr Maluleke notes that: ‘It does not make sense as to why the parties to valid monogamous customary marriages would be encouraged to transition to civil marriages, whereas the two types of marriages are of equal status and bear the same propriety consequences. The Marriage Act and Civil Union Act do not make any provision that parties can change the marriage system to conclude a marriage in terms of the RCMA. The interpretation of s 10(1) of the RCMA seems to suggest a failure to fully recognise an equal status between customary and civil marriages. The section seems to prefer civil marriages at the expense of African customary marriages, despite the legislative recognition of the African customary marriages.’

The Recognition of Customary Marriages Amendment Act 1 of 2021, which aims to amend the RCMA to further regulate the proprietary consequences of customary marriages entered into before the commencement of the said Act commenced on 1 June 2021. The amendment states that:

Section 1 of the RCMA is amended by the substitution for the definition of ‘traditional leader’ of the following definition:

‘traditional leader’ means ‘any person who, in terms of customary law of the traditional community concerned, holds a traditional leadership position and is recognised in terms of the applicable legislation providing for such recognition’.

Section 7 of the RCMA is amended –

‘(a) by the substitution for subsection (1) of the following subsection:

(1)(a) The proprietary consequences of a customary marriage in which a person is a spouse in more than one customary marriage, and which was entered into before the commencement of this Act, [continue to be governed by customary law] are that the spouses in such a marriage have joint and equal –

(i) ownership and other rights; and

(ii) rights of management and control, over marital property.

(b) The rights contemplated in paragraph (a) must be exercised –

(i) in respect of all house property, by the husband and wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and

(ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.

(c) Each spouse retains exclusive rights over his or her personal property.

(d) For purposes of this subsection, “marital property”, “house property”, “family property” and “personal property” have the meaning ascribed to them in customary law; and

(b) by the substitution for subsection (2) of the following subsection:

“(2) A customary marriage [entered into after the commencement of this 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.”

Transitional provisions

3(1) The provisions of section 2 of this Act do not invalidate –

(a) the winding up of a deceased estate that was finalised; or

(b) the transfer of marital property that was effected, before the commencement of this Act.

(2) The provisions of subsection (1) do not apply to the transfer of marital property where, at the time of such transfer, the person to whom the marital property was to be transferred, was aware that the marital property in question was subject to a legal challenge’.

In his keynote address on 21 March 2021 at the Inter-Ministerial Roundtable on the Draft Marriage Policy, Minister of Home Affairs, Dr Aaron Motsoaledi, noted that a Bill has been formulated to deal with the fact that currently, marriages in South Africa are regulated through three pieces of legislation. The new marriage legislation proposes the following approaches:

‘Option 1: Is a Single Marriage Act, which has [a] unified set of requirements and consequences applying to all marriages. The difficulty in this approach is that it may have the unintended consequence of harmonising irreconcilable legal systems. In that sense it may not be suitable for the country’s mixed legal system and might not pass constitutional muster.

Option 2: Is an Omnibus or Umbrella Act, which is a single Act that contains different chapters that reflect the current diverse set of legal requirements for and consequences of civil marriages, civil unions, customary marriages and other marriages that are not accommodated by the current legislation. It is a harmonisation of the existing marriage legislation which aims to remedy and eliminate conflicts between different legal systems although they are allowed their distinct recognition and continuation.

Option 3: … Parallel Marriages Acts, which is the retention of the status quo that requires consideration. Although this option will generally be suitable for the country’s mixed legal system, retaining the status quo would not be consistent with the transformative nature of the country’s Constitution. This option will require enactment of more marriage legislation that must cater for marriages that are excluded by the current legislation.’

Until new legislation has been enacted, the RCMA will remain a hot topic in the journal. For more articles on the topic, legal practitioners are invited to search www.derebus.org.za

This article was first published in De Rebus in 2021 (Aug) DR 3.