Recent changes to Matrimonial law explained

By 3rd May 2021Family Law
matrimonial law

There are impending changes that are being made to matrimonial law in so far as it relates to customary marriages.

In terms of the Recognition of Customary Marriages Act 120 of 1998 (the Act), monogamous customary marriages entered into in terms of the Recognition of Customary Marriages Act of 1998 are in community of property, with profit and loss. This is the position in respect of monogamous customary marriages contracted before or after the commencement of this Act. Although spouses can change the matrimonial property system applying to their marriage should they wish to do so.

Section 7(1) of the Act, however, in an apparent disparity, provides that the proprietary consequences of polygamous customary marriages entered into before the commencement of the Act are to be governed by customary law. This despite it being common knowledge that in terms of most customary law systems, wives have no right of ownership and control over marital property, and that right is reserved solely for husbands.

The Constitutional Court, in Ramuhovhi and Others v President of the Republic of South Africa and Others, confirmed the Limpopo High Court decision that section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 is, for the abovementioned reason, unconstitutional. It discriminates unfairly against women in polygamous customary marriages entered into before the commencement of the Act (pre-Act marriages), on the basis of gender, race and ethnic or social origin. Section 7(1) perpetuates inequality between husbands and wives in the case of pre-Act polygamous customary marriages.

Consequently, the court afforded Parliament an opportunity to correct the defect giving rise to the constitutional invalidity and on 2 March 2021, the National Assembly passed the Recognition of Customary Marriages Amendment Bill (the Bill).

The Bill amends section 7(1) of the Act by providing that the proprietary consequences of a marriage in which a person is a spouse in a Pre-Act polygamous customary marriage will be such that the spouses in such a marriage have joint and equal—

  • ownership and other rights; and
  • rights of management and control, over marital property.

The abovementioned rights will be exercised in respect of all house property, by the husband and wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; as well as in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses. Further to that, each spouse retains exclusive rights over his or her personal property.

Although the Bill is retrospective, in that it applies to all polygamous customary marriages entered into before commencement of the Act, it limits its retrospectivity by stating that the provisions will not apply to the transfer of marital property were, at the time of such transfer, the person to whom the marital property was to be transferred, was aware that the marital property in question was subject to a legal challenge.

This limit in retrospectivity is unclear and may well open up claims for transfers that were already finalized and in which spouses may claim that they were not aware of the legal challenge to the Act.

 

Should you need assistance with a matter involving the transfer of marital property please contact us.

 

Rose Mkandhla
rose@bbplaw.attorney
Associate

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