Recognition of Customary Marriages

The change of position for women previously discriminated against in customary marriages

Cabinet in July 2019 approved the submissions made on the Recognition of Customary Marriages Amendment Bill of 2019 to Parliament. The approval of this Bill is said to be a major win for women who have been discriminated unfairly against in customary marriages previously. This article will seek to explore the definition of a customary marriage, the purpose of the Recognition of Customary Marriages Act, what change the Bill has brought about and what this change means for women in customary marriages.  

What is a customary marriage?

A customary marriage is a marriage concluded in accordance with Customary Law. Customary Law refers to the “customs and usages traditionally observed amongst the indigenous African people of South Africa and which form part of the culture of those people.”

What is the purpose of the Recognition of Customary Marriages Act 120 of 1998?

• To make provision for the recognition of customary marriages;
• To specify the requirements for a valid customary marriage;
• To regulate the registration of customary marriages;
• To provide for equal status and capacity of spouses in customary marriages;
• To regulate the proprietary consequences of customary marriages and the capacity of spouses of such marriages;
• To regulate the dissolution of customary marriages;
• To provide for the making of regulations; and
• To repeal certain provisions of certain laws and to provide for matters connected therewith.

What change has the new Bill brought about for the Act?

The Bill brings section 7(1) and 7(2) of the Recognition of Customary Marriages Act in alignment with a judgement delivered by the Constitutional Court, the highest court in our Country, in 2017.

This judgment by the Constitutional Court in 2017 declared the provisions of sections 7(1) and 7(2) of the Recognition of Customary Marriages Act constitutionally invalid.

The basis for the Constitutional Court declaring such sections invalid was because these sections discriminated against women unfairly and also treated polygamous marriages differently to monogamous marriages.

What do sections 7(1) and 7(2) of the Recognition of Customary Marriages Act say?

Sections 7(1) and 7(2) of the Recognition of Customary Marriages Act deals with the proprietary consequences of customary marriages and contractual capacity of spouses as follows:

“(1) The proprietary consequences of a customary marriage entered into before the commencement of this Act continue to be governed by customary law;

(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.”

 What does this change mean for women in customary marriages?

This Bill provides for the equal treatment of women in monogamous and polygamous customary marriages which were entered into before the Recognition of Customary Marriages Act.

This change eradicates the gender-based discrimination in polygamous marriages entered into before the commencement of the Recognition of Customary Marriages Act.

What does all of this mean? Well, spouses (husbands and wives) will now have joint and equal proprietary rights over matrimonial property. Husbands, alone, are no longer the exclusive holders of proprietary rights in matrimonial property to the disadvantage of their wives. Children can also now benefit as they will be able to inherit from their mothers as well.

Put simply, women have a win here and should celebrate the milestone of equality of customary marriages!