Chapter 5: Formally recognized unions Patrimonial consequences: Customary marriages
Discuss and distinguish between patrimonial consequences and polygynous customary with refence to
authority.
Customary marriage
Matrimonial property is foreign to its customary law in Africa since property is traditionally meant to be
managed for the benefit of the family. Patrimonial law consequences of customary marriages in SA have
been declared unconstitutional by the CC in Gumede v President of RSA and others and Ramohovhi and
another v President of RSA and others. The judgements brought about the amendment and provisions of
the section 7 of the RCMA on 1 June 2021.
Monogamous customary marriages
According to S7(2) of the RCMA a customary marriage where a spouse is not partner in any existing
customary marriage is a marriage of property unless the consequences are specifically excluded by the
spouses in an antenuptial contract. Patrimonial consequences of De facto monogamous customary
marriages thus have the same default patrimonial consequences as civil marriages and civil unions
regardless of whether the customary marriage was concluded before or after the RCMA came into
operation.
Polygynous customary marriages
The RCMA makes a distinction between customary marriages concluded before the RCMA and the
customary marriages concluded after the RCMA.
Customary marriages concluded before the RCMA
Section 7(1) of RCMA was amended in June 2021. This amendment reflects the judgment by the CC in
the Ramuhovhi case. The first noticeable feature is the usage of the term “marital property”. According
to subsection (d) the term must be interpreted in accordance with the customary law. Meanings may
differ from those described above S7(1) could be challenged on constitutional grounds as a violation of
the right to equality. The implementation and effect these provisions could be problematic, at the
dissolution of the marriage. S7(1) makes provision of community of property between the husband and
each of his wives which may be difficult to divide at the death of the husband or when he divorced one
of the wives, dividing the family property owned by the husband and all his wives together could pose a
challenge.
Customary marriages concluded after the RCMA
Polygynous customary marriages concluded after the commencement of the RCMA S7(6) of the RCMA
states that if a husband wishes to conclude a further customary marriage he must apply to court for
approval of a written contract which will regulate the future property system of his customary marriages.
In MN v MM decided that the subsequent customary marriage is entered into without compliance with
S7(6) the marriage remains valid. In MN v MM the husband married his first wife after the
commencement of the RCMA without a union contract. This marriage was therefore in community of
property (COP). He married his second wife without complying with S7(6). If an application is made by
Discuss and distinguish between patrimonial consequences and polygynous customary with refence to
authority.
Customary marriage
Matrimonial property is foreign to its customary law in Africa since property is traditionally meant to be
managed for the benefit of the family. Patrimonial law consequences of customary marriages in SA have
been declared unconstitutional by the CC in Gumede v President of RSA and others and Ramohovhi and
another v President of RSA and others. The judgements brought about the amendment and provisions of
the section 7 of the RCMA on 1 June 2021.
Monogamous customary marriages
According to S7(2) of the RCMA a customary marriage where a spouse is not partner in any existing
customary marriage is a marriage of property unless the consequences are specifically excluded by the
spouses in an antenuptial contract. Patrimonial consequences of De facto monogamous customary
marriages thus have the same default patrimonial consequences as civil marriages and civil unions
regardless of whether the customary marriage was concluded before or after the RCMA came into
operation.
Polygynous customary marriages
The RCMA makes a distinction between customary marriages concluded before the RCMA and the
customary marriages concluded after the RCMA.
Customary marriages concluded before the RCMA
Section 7(1) of RCMA was amended in June 2021. This amendment reflects the judgment by the CC in
the Ramuhovhi case. The first noticeable feature is the usage of the term “marital property”. According
to subsection (d) the term must be interpreted in accordance with the customary law. Meanings may
differ from those described above S7(1) could be challenged on constitutional grounds as a violation of
the right to equality. The implementation and effect these provisions could be problematic, at the
dissolution of the marriage. S7(1) makes provision of community of property between the husband and
each of his wives which may be difficult to divide at the death of the husband or when he divorced one
of the wives, dividing the family property owned by the husband and all his wives together could pose a
challenge.
Customary marriages concluded after the RCMA
Polygynous customary marriages concluded after the commencement of the RCMA S7(6) of the RCMA
states that if a husband wishes to conclude a further customary marriage he must apply to court for
approval of a written contract which will regulate the future property system of his customary marriages.
In MN v MM decided that the subsequent customary marriage is entered into without compliance with
S7(6) the marriage remains valid. In MN v MM the husband married his first wife after the
commencement of the RCMA without a union contract. This marriage was therefore in community of
property (COP). He married his second wife without complying with S7(6). If an application is made by
