Customary marriages: The woman’s right to maintenance and property ownership

August 1st, 2020

Picture source: Gallo Images/Getty

The focus on gender equality, in particular the rights of women in South African society, has come under the spotlight to the extent that amendments to current legislation is being implemented via the amendment of s 7 of the Recognition of Customary Marriages Act 120 of 1998 (the Act).

What is a customary union?

According to the definition in the Act, a marriage in terms of customary law requires the use of customs and traditions usually observed among the indigenous African people of South Africa, which forms part of the culture of those people.

The definition is inclusive of various customs and traditions of the many indigenous communities within the South African borders. The definition excludes Hindu and Islamic marriages.

Marriages before 15 November 2000

The Act gives recognition to marriages that were concluded before the Act was promulgated. All customary marriages concluded were recognised, including polygamous marriages and every ‘wife’ was given the status of a ‘spouse’.

Section 7(1) of the Act indicates that the proprietary consequences of a customary marriage entered into before the commencement of the Act would continue to be governed by customary law, and s 7(2) provides that a monogamous marriage entered into after the commencement of the Act will be classified as a marriage in community of property and the parties to the marriage will have the option to have their marriage governed by an antenuptial contract.

When this legislation was enforced, a window period was implemented to allow everyone who entered into a customary union – monogamously or polygamously – to have their marriages registered in terms of the Act.

The window period spanned a period of ten years and ended on 31 December 2010. Any attempt to have a customary marriage recognised after this date would have to be accompanied by an application for the condonation of the late filing from the High Court of South Africa.

While the recognition of marriages was given by the Act, implementation on certain events, such as death, maintenance and property rights were impossible as existing legislation had not been amended.

Marriages after 15 November 2000

The requirements, in terms of the Act, for a valid customary union includes:

  • The parties to the union must be 18-years-old, and the consent of both persons must be obtained.
  • The marriage must be negotiated, entered and celebrated in terms of customary law.
  • If a minor is part of the marriage, the parents or the legal guardian must consent to the union.
  • The parties may not be prohibited from marrying by blood or affinity.
  • The husband in a customary union is further required in terms of s 7(6) of the Act to make an application to court to approve a written contract to regulate the future matrimonial property system of his marriage. A failure to comply with this requirement by the husband could render any further marriage void (MM v MN and Another 2010 (4) SA 286 (GNP)). Such contract may be registered up to three months after the marriage.

While the Act was a step in the right direction, there were many practical consequences that were not considered. Existing legislation did not support the Act and this led to legislation being challenged in courtrooms.

When death intervenes

The Intestate Succession Act 81 of 1987 specifically excluded the estates of Black South Africans, which meant that the Black Administration Act 38 of 1927 was still the legislation used for succession in customary unions that ended with death and where there was no valid will. The inequality of gender and race and its impact on inheritance persisted in the wake of existing legislation that had not been amended.

In 2005, five years after the Act was in existence the Constitutional Court (CC) in the matter of BHE and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC), successfully challenged the legislation. Up until then, only black men could inherit from estates and the BHE case was based on the unfair discrimination of the deceased’s two daughters and spouse in a customary union who were not allowed to inherit because they were female.

The CC held that in the case where there was no dispute to inheritance, the family had to decide whether indigenous laws of succession or the Interstate Succession Act would apply. Where there is a dispute, such a dispute would have to be decided by the magistrate’s court.

The Intestate Succession Act was amended in 2005 to include all intestate estates, without race discrimination.

The right to maintenance

Spouses in a customary marriage are also faced with challenges when they claim maintenance from their spouse in a customary marriage. In the case of Kambule v the Master and Others 2007 (3) SA 403 (E), Ms Kambule was married to Mr Baduza, the deceased in terms of a customary union. On Mr Baduza’s death Ms Kambule claimed for maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990. During the proceedings it was established that Mr Baduza was also married to one, Norah Baduza, in terms of the now repealed Black Administration Act. The court further established, Norah and Mr Baduza had concluded a valid customary union.

At the time, the Maintenance of Surviving Spouses Act did not cater for polygamous unions, however, the judge concluded that Ms Kambule established a customary relationship and union and, therefore, fell with the ambit of the definition of a survivor in the Maintenance of Surviving Spouses Act. This Act was consequently amended to include all the spouses in a polygamous and customary union.

The right to own property

The proprietary consequences of a customary marriage before the commencement of the Act was challenged by spouses who were in a customary union in the case of Gumede v President of Republic of South Africa and Others 2009 (3) SA 152 (CC). Spouses married before the commencement of the Act, rightfully, pointed out that they were treated differently to spouses that were married in terms of customary law after the commencement of the Act.

The CC dealt with the proprietary and personal rights of a female in a monogamous customary marriage, but failed to extend its judgment to the consequences of a polygamous marriage entered into before the commencement of the Act.

This meant that s 7(1) of the Act was only declared invalid insofar as it related to monogamous marriage and customary law still applied to all polygamous marriages before the commencement of the Act.

The CC in Gumede did not deal with the full issue of equality in customary marriages, be it monogamous or polygamous. Government was now aware of the gap in legislation after the judgment of the Gumede case. However, it failed to amend the legislation.

Women and their children in polygamous marriages concluded before the Act commenced still stood to be severely discriminated against as a result.

The issue was successfully challenged in the matter of Ramuhovhi and Others v President of the Republic of South Africa and Others 2018 (2) SA 1 (CC).

The case dealt with the following issues:

  • The unequal treatment of women irrespective of whether their marriage was a monogamous or polygamous marriage concluded before the commencement of the Act.
  • Gender discrimination based on whether a husband in a polygamous marriage, entered into before the commencement of the Act, had exclusive proprietary rights on marital property. Wives were considered minors and the impact of the death of the husband or divorce; the wife or wives could be left with nothing.

Discrimination on the basis of gender, race and ethnic origin was evident. It limited the right to human dignity and the right not to be discriminated against unfairly. The infringement of these rights was found not to be justifiable in terms of the general limitation clause in s 36 of the Constitution. Section 36 provides that when determining if a limitation is reasonable and justifiable the following factors must be considered and include but are not limited to –

  • the nature of the right;
  • the importance of the limitation;
  • the nature and extent of the limitation;
  • the relation between the limitation and its purpose; and
  • less restrictive means to achieve the purpose.

The courts have the further right to consider other vital factors.

Ten years after the Gumede case, the judge in the Ramuhovhi case, directed that:

  • Section 7(1) of the Act be declared constitutionally invalid.
  • The declaration of constitutional invalidity be suspended for a period of 24 months so that the legislature has an opportunity to amend the legislation and correct the invalidity of s 7(1) of the Act.
  • Interim measures for customary marriages concluded before the commencement of the Act up to the passing of the amendment to the Act would include:

‘(a)     Wives and husbands will have joint and equal ownership and other rights to, and joint and equal rights of management and control over, marital property, and these rights shall be exercised as follows –

(i)       in respect of all house property, by the husband and the 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.

(b)      Each spouse retains exclusive rights to her or his personal property’.

  • Should parliament fail to amend the required legislation within the allocated time of two years, the interim measures shall continue to apply.
  • The court in the Ramuhovhi case does not invalidate estates that have already been wound up and divorces that have been finalised and marital property that has been transferred.
  • The interim measures of the Ramuhovhi judgment will apply to matters where, at the time of the transfer of the property, the transferee was aware that the property concerned was subject to a legal challenge on the grounds upon which the appellants brought this case.

The Amendment Bill as envisaged is expected to have a significant bearing on the previously disenfranchised sector of the South African community and it is, therefore, imperative to fully understand its impact as it relates to one’s rights in respect of customary marriages.

Nevetha Maharaj BSocSc (UKZN) LLB (UWC) BCom (Hons) (IR) (UKZN) Post Grad Dip in Financial Planning and Post Grad Dip (Specialised) (Estate Planning) (UFS) is a Legal Adviser Specialist at Old Mutual Personal Finance in Pietermaritzburg.

This article was first published in De Rebus in 2020 (Aug) DR 12.

De Rebus