Understanding the validity of polygamous marriages in South Africa and the legal protection of proprietary interests of parties
A customary marriage is defined in Section 1 of the Recognition of Customary Marriages Act 120 of 1998 (“the Act”) as a ‘marriage concluded in terms of customary law’. This is a union that is negotiated, celebrated, and concluded in terms of indigenous African customary law by the indigenous population groups in South Africa in accordance with those customs / traditions.
The purpose of this article is to look at the proprietary consequences of customary marriages – both monogamous and polygamous.
Parties that conclude a customary marriage after the commencement of the Act must satisfy the requirements prescribed by section 3 of the Act. The marriage must thereafter be registered in the Department of Home Affairs within 3 (three) months of its conclusion. However, a failure to register the marriage does not deem it invalid. The marriage is still legally recognized and binding with matrimonial property consequences.
Monogamous customary marriages concluded before or after 15 November 2000, being the commencement of the Act adopt the same matrimonial regime in that the proprietary consequence of such a marriage follows in community of property and profit and loss between the spouses (Section 7(2) of the Act). This means that all property owned by the spouse whether it was acquired before or after the marriage, together with debt now forms part of the joint estate. If parties wish to exclude the joint estate, it is important for parties to consult a Notary Public to draw up an antenuptial agreement which is a contract which dictates the distribution of their property when the marriage dissolves, either by way of a divorce or death. Such a contract must be concluded before the customary marriage is concluded.
The position as it relates to the proprietary interests of spouses to a polygamous marriages concluded before the commencement of the Act was significantly changed by the Recognition of Customary Marriages Amendment Act 1 of 2021 (the Amendment Act”).
Before the amendment, the Act provided that polygamous marriages that predated the Act would remain subject to customary law however the Amendment Act which came into operation on 01 June 2021 shifted the position of the spouses to now having joint and equal rights of ownership, management and control over the marital property. The Amendment Act provides for three categories of property ownership namely, Family Property (property belonging to the whole family which is owned and controlled for the best interest of the whole family jointly and equally by the husband and all his wives), House Property (owned and controlled jointly and equally by the husband and the wife of that particular household) and Personal Property (which belongs to the spouse personally).
A husband to a customary marriage who wishes to conclude a further customary marriage with a woman after the commencement of the Act must by application to the High Court request for the approval of a written contract which will regulate the future matrimonial property regime of his marriages. Where the first marriage of the husband was concluded in community of property or subject to the accrual system, the court will dissolve the matrimonial property system of the first marriage and ensure an equitable distribution of the property taking into account all relevant circumstances of the family groups which would otherwise be affected.
Once the contract is approved the Registrar of the High Court issues the said contract and thereafter it must be delivered to the Deeds Registry for registration against the names of the polygamous spouses. The marital property consequences of such polygamous marriage is that the estates of the spouses are separate, i.e. Out of Community of Property.
The Supreme Court of Appeal in Ngwenyama v Mayelane and Another (474/2011)  ZASCA 94; 2012 pondered over the issue of whether the failure of a husband to make an application to court to approve a written contract regulating the matrimonial property system of both the first and second marriages, as envisaged in s7(6) of the Act, invalidates the subsequent customary marriages from inception, in the absence of an express provision in the Act to that effect. The court held that a failure by the husband to obtain the consent from his wife of the first customary marriage does not render the subsequent customary marriage null and void, this marriage would however be one out of community of property.
A customary marriage is dissolved the same way as civil marriages in South Africa, by a decree of divorce. An informal separation by parties does not negate the legal enforceability and the proprietary consequences governing the customary marriage.