Customary marriages and ownership of immovable property
Recognition of customary marriages in South Africa has undergone several shifts over the years through the implementation of new legislation. This has impacted not only the legal status of the parties to a customary marriage but also their ownership of and rights to matrimonial property.
Under Apartheid laws, customary marriages were not recognised by civil law. This changed with the Recognition of Customary Marriages Act, 1920 of 1998, which came into operation on 15 November 2000. The Act afforded customary marriages equal status in the eyes of the law and is applicable to all customary marriages entered into in accordance with customary law on or after 15 November 2000.
The difference between civil and customary marriages
A civil marriage needs to be formalised through the signing of a ceremonial document and must be officiated by a marriage officer. A customary marriage, on the other hand, is concluded in accordance with traditions of indigenous African customary law. As such, a customary marriage is entered into through a series of events that show the intent to form a union by all concerned, including the families of those entering into the marriage.
Perhaps the most significant difference between a customary and civil marriage in South African law is that while a civil marriage may only be between two people, customary marriages allow for polygamous relationships. This is an important factor when considering the consequences of marriage on the ownership of property.
Monogamous customary marriages
In accordance with the applicable laws in South Africa, customary marriages that are monogamous (i.e. marriages where there is only one husband and one wife) are deemed to be in community of property.
This means that all property owned by both parties to the union will form one joint estate that is owned in equal parts by both husband and wife. In addition, this matrimonial regime holds both parties liable for any debt accrued by either party.
Should the couple wish to enter into the marriage with an alternative matrimonial regime, an ante nuptial contract must be drawn up and signed prior to the marriage.
The customary marriage should then be registered at the Department of Home Affairs. It’s worth noting that in the case of a monogamous customary marriage, even if it is not registered, it is treated in the same way and with the same validity as if it had been.
Polygamous customary marriages
Unlike with civil marriages, it is possible to enter into a polygamous customary marriage, which will then impact the ownership of matrimonial property. Prior to entering into a polygamous customary marriage, the husband is required to apply to the High Court and supply written documentation outlining the proposed ownership of property for each current and subsequent spouse. This is vital as it will ensure all parties are aware of their rights relating to ownership of property in the marriage.
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