The question whether parties are married in or out of community property is critical for the correct execution of conveyancing documents. This poses an even greater challenge in the case of customary marriages. This challenge is exacerbated by the fact that it is more likely for parties to a customary marriage not to be aware of the law which governs their marriage regime than parties to civil marriages. This is because the law governing civil marriages has been stable whereas that governing customary marriages is fairly new and continues to be developed. Therefore, we are now going to highlight certain developments in the law governing customary marriages and questions that conveyancers have to consider when dealing with a client who is party to a customary marriage.

The Recognition of Customary Marriages Act No. 120 of 1998 (“the RCMA”) came into operation on 15 November 2000. The RCMA was introduced among other things to make provision for the recognition of customary marriages, to specify the requirements for a valid customary marriage, regulate the registration of customary marriages, provide for the equal status and capacity of spouses in customary marriages and to regulate the proprietary consequences of customary marriages. The RCMA defines a customary marriage as a marriage concluded in accordance with customary law, and customary law as customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those people.

The requirements for a valid customary marriage are contained in Section 3 of the RCMA and are as follows:

(a)    Both parties to the marriage must be 18 years or older;
(b)    Both must consent to be married to each other in terms of customary rites; and
(c)    The marriage must be negotiated and entered into or celebrated in accordance with customary law

The Gumede case [Gumede v President of the Republic of South Africa 2009 (3) BCLR 243 (CC)], a Constitutional Court judgment, dealt with monogamous customary marriages. It was decided in this case that with regards to the proprietary consequences relating thereto, all monogamous customary marriages are in community of property, irrespective of when the marriage was entered into (i.e. before or after the coming into operation of the RCMA), unless the parties have entered into and registered an antenuptial contract before the date of marriage. Therefore, Section 7(1) of the RCMA was declared inconsistent with the Constitution and unconstitutional insofar as it stated that a customary marriage entered into before 15 November 2000 was governed by customary law.

The Gumede case however, did not address the question of polygamous customary marriages. The Constitutional Court therefore addressed polygamous customary marriages in the Ramuhovhi case (Ramuhovhi and Others v President of the Republic of South Africa and Others [2017] ZACC 41). In this case the Court confirmed the declaration of constitutional invalidity of section 7(1) of the RCMA. This therefore means that the provision that customary marriages are governed by customary law has been declared unconstitutional regardless whether the customary marriage is monogamous or polygamous.

The Constitutional Court has however suspended the declaration of constitutional invalidity of section 7(1) of the RCMA in the Ramuhovhi case for a period of 24 months, in order to give Parliament time to address the defect in the law. During this suspension period, the Court has put in place an interim regime which provides that wives and husbands in a polygamous customary marriage will have joint and equal ownership, and joint and equal rights of management and control over marital property.

In addition to the case law discussed above, it is worth noting that in terms of section 7(6) of the RCMA, a husband in a customary marriage who wishes to enter into a further customary marriage must apply to the court to approve a written contract which will regulate the future matrimonial property system of his marriages. The Constitutional Court in MM v MN 2013 4 SA 415 (CC) confirmed that a failure to obtain the contract envisaged by section 7(6) of the RMCA does not render the future marriages invalid, but such marriages are deemed to be out of community of property.

It follows from above that the questions to consider when dealing with a client who is party to a customary marriage include whether:

•     the marriage is monogamous or polygamous?
•     the parties have entered into and registered an antenuptial contract before the conclusion of the customary marriage;
•    the marriage is governed by a written contract that has been approved by the court in the case of a polygamous customary marriage.