Understanding the impact of customary marriage on estate planning, inheritance and property ownership. Bibi Smit, Director in Conveyancing of TGR Attorneys, unpacks the topic for Transform.
The recent flood of reaction pursuing the judgement in favour of Lerato Sengadi, when she sought to be recognised as the rightful wife of Jabulani ‘HHP’ Tsambo in terms of customary law, is proof of the uncertainty which still exists in understanding the effects of customary marriages nearly 20 years after the coming into operation of the Customary Marriages Act 120 of 1998 (“the Act”).
Due to this lack of knowledge, it is mostly the women in these marriages who get the shortest end of the stick, when the marriage ends, and it is therefore imperative for parties entering into a customary marriage to understand the legal implications of such a marriage before the process is started.
Even though the Act is quite clear as to what constitutes a valid customary marriage, the process which precedes these marriages, being the “lobola ceremony” could be open to a difference of interpretation. This is mainly due to the diversity of the various ethnic groups and often a dispute arises as to which customary procedure takes precedence over the other. Which could lead to the customary marriage not being recognised by one of the parties.
The following definitions contained in section 1 of the Act, needs to be highlighted in order to explain a few of the important elements of the Act:
“customary law” means the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples; “customary marriage” means a marriage concluded in accordance with customary law; “lobola” means the property in cash or in kind, whether known as lobola, bogadi, bohadi, xuma, lumalo, thaka, ikhazi, magadi, emabheka or by any other name, which a prospective husband or the head of his family undertakes to give to the head of the prospective wife’s family in consideration of a customary marriage.
In terms of section 3(1) of the Act, for a customary marriage entered into after the commencement of this Act to be valid –
(a) the prospective spouses –
(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law, and
(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.
In terms of section 4(1) of the Act, the spouses of a customary marriage have a duty to ensure that their marriage is registered, however section 4(9) states that failure to register a customary marriage does not affect the validity of that marriage.
In terms of section 7(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.
And it is in this section 7(2) that the crux of the matter lies. A couple planning to enter into a customary marriage should be very careful not to start the customary marriage process until such time as they have made an appointment with a notary who will explain the effects of being married in community of property, or out of community of property with or without accrual.
Should a valid antenuptial contract not be entered into by the parties and registered within the required timeframes, by the notary, the marriage will be one of in community and as such the spouses will have a joint estate which could have dire consequences for the spouses in the event of insolvency of one of the spouses, for example.
Spouses married in community of property can only register immovable property and a mortgage bond in the joint estate, while spouses married out of community of property can register immovable property in their own names or in both their names, as they wish.
Section 8(1) states that a customary marriage may only be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the marriage. Should the marriage be dissolved by divorce, the spouses will be able to enter into a settlement agreement before the granting of the divorce, as any legally married spouses would have the right to do.Upon death of either of the spouses the marriage would be dissolved and the effect will be that the surviving spouse will have all the legal the rights of a legal spouse in that they will be able to inherit testate or intestate, as the case may be.
The above do not even touch on the implications of polygamous customary marriages entered into by either of the parties, which ads a whole new dimension to this discussion, and is a topic for another time.
I once read that all relationships have an expiry date and believe that a marriage should be entered into with caution and not until such time as the prospective spouses took the time to ascertain exactly what the implications of the various marriage regimes will be on their lives as a married couple, but also if the marriage ends for whatever reason.
Knowledge is power and spending a bit of time and money beforehand could save you a lot of money and hardship later and I therefore recommend that intended spouses contact a Notary practicing at a reputable law firm to set up an appointment and gain as much information as possible before taking one of the biggest steps in their lives.