Failure to recognise equal status between customary and civil marriages

August 1st, 2021
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Before South Africa (SA) became a democratic country and during the Apartheid era, marriages of indigenous African people were concluded in accordance with indigenous African customs, and were not recognised as valid marriages in SA. The then legal system of SA only recognised civil marriages as valid marriages in SA.

The Marriage Act 25 of 1961 was promulgated to regulate the requirements, solemnisation, registration, and dissolution of civil marriages. The Marriage Act was a codification of Western customary marriages.

The Recognition of Customary Marriages Act 120 of 1998 (RCMA) was promulgated and it came into effect on 15 November 2000. The RCMA has been compiled in line with the indigenous African customs. The primary purpose of the Recognition of Customary Marriages Act is to acknowledge and recognise the customary marriages of black South Africans, which marriages have been and are to be entered into in accordance with the indigenous customs of the parties to the marriage.

Through the RCMA, the marriages of indigenous Africans were recognised for the first time in SA. The Act prescribed the requirements for a valid customary marriage, the propriety consequences, and the dissolution of the customary marriages.

The status of civil versus customary marriages (monogamous)

Both civil marriages and monogamous customary marriages are automatically in community of property and of profit and loss unless parties elect to conclude an antenuptial contract.

The Constitutional Court (CC) has ordered that the propriety consequences of monogamous customary marriages, through retrospective application of the RCMA are automatically marriages in community of property and of profit and loss. Reference is made to the case of Gumede v President of the Republic of South Africa and Others 2009 (3) BCLR 243 (CC).

In the matter of AS and Another v GS and Another [2020] 2 All SA 65 (KZD), Madondo DJP declared the provisions of s 21(2)(a) of the Matrimonial Property Act 88 of 1984 unconstitutional and invalid to the extent that they maintain and perpetuate the discrimination created by s 22(6) of the Black Administration Act 38 of 1927, in that the marriages of black couples entered into under the Black Administration Act before 1988, are automatically out of community of property.

Both civil and customary marriages in SA currently enjoy equal status insofar as the recognition, propriety consequences and the dissolution thereof. The CC has cemented an equal status of the monogamous customary marriages to civil marriages.

Both marriages can only be terminated by death or by divorce in terms of the Divorce Act 70 of 1979.

African customary marriages bow to Western customary marriages

Section 10 of the RCMA reads as follows:

‘Change of marriage system –

(1) A man and a woman between whom a customary marriage subsists are competent to contract a marriage with each other under the Marriage Act [25 of 1961], if neither of them is a spouse in a subsisting customary marriage with any other person.’

Section 10(1) of the RCMA provides for the change of the marriage system. It should be noted that the term ‘marriage system’ is not referring to the proprietary consequences of the marriage. It specifically directs that people who are parties to a valid customary marriage (monogamous marriages) may change the marriage system from customary to civil marriages in terms of the Marriage Act.

Civil marriages contracted in terms of the Marriage Act or Civil Union Act 17 of 2006 are automatically marriages in community of property and of profit and loss, unless specifically excluded by the antenuptial contract.

It must be noted that monogamous customary marriages under the RCMA are also automatically marriages in community of property and of profit and loss, unless specifically excluded by the antenuptial contract.

Therefore, there is equal status between the two types of marriages, as well as the propriety consequences created therefrom.

The practical application of s 10 of the RCMA

The legislation promotes and encourages parties in valid monogamous customary marriages to abandon their valid marriages and to conclude second marriages under Western customs. Marriages under Western customs have always been considered the only valid marriages in SA.

The practical application of s 10 is strictly an ‘upgrade’ from a marriage of an inferior status to the opposite. If it was not an upgrade, the Act would call for the termination of the customary marriage in order to contract a civil marriage.

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.

It should be noted that parties are still at liberty to choose any type of marriage they might wish to contract, under any law that suits their liking. It is, however, an injustice and deliberately undermines the RCMA if parties thereof can be encouraged to abandon their marriage and be allowed to conclude other marriages without firstly terminating the valid existing customary marriages.

Recommendations

Customary marriages contracted in terms of the RCMA should enjoy equal status with valid civil marriages contracted in terms of the Marriage Act and Civil Union Act.

A direct transition from customary marriage to civil marriage should be abolished forthwith.

The equal status of all marriages should be emphasised, and a campaign of public awareness be launched.

Lastly, s 10(1) of the RCMA should forthwith be repealed.

Terrance Maluleke LLB (University of Limpopo) is a legal practitioner at Mvundlela & Associates Inc.

This article was first published in De Rebus in 2021 (Aug) DR 9.

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