A new bill approved by Cabinet recently has important financial implications regarding customary marriages in South Africa, according to John Manyike, head of financial education at Old Mutual.
Amendments to the Recognition of Customary Marriages Act (RCMA) provides for the equal treatment of women in monogamous and polygamous customary marriages, Manyike told Fin24 on Monday.
Essentially, the bill gives women who entered into customary marriages prior to 2000 equal rights to marital property, something which they did not have before, since the introduction of the RCMA did not apply retrospectively. In terms of the law, a valid customary union must satisfy three requirements.
The couple must consent to a customary marriage in accordance to customary law; couple must be older than 18 years or have parental consent; and the marriage must be negotiated and entered into or celebrated according to customary law.
Manyike points out that the amendments further means that someone who married a first wife under customary law, cannot afterwards conclude a valid civil marriage with a different person. Furthermore, he thinks there are probably many husbands who concluded another marriage after "separating" from their customary law wife.
Under the new amendments this could have implications for the second marriage due to the fact that customary law marriage automatically amounts to marriage in community of property and since the amendments apply retrospectively, this could open a Pandora's box of litigation over joint estates and distribution of assets.
"As long as you do not register your customary law marriage with home affairs or obtain a declaratory order confirming the validity of your customary marriage through the legal system, you will find it difficult to enforce your property rights upon death of your spouse or dissolution of your marriage," says Manyike.
Manyike adds, if a man entered into a valid customary union and later entered into a second marriage and his estate is worth R2m after his death, the first wife would now be entitled to R1m of the estate.
The Nhlapo vs Mahlangu (2014) case where two women discovered, after the death of their husband, that they had been married to the same man. The first wife was married in a customary union and the second in a civil union. Both women approached the court and the judge ruled that the validity of the customary union was established and, therefore, the civil union was declared invalid since the husband did not have the consent of his first wife to enter into the second marriage.
"I want to point out that, not registering a customary union with Home Affairs does not render it invalid. In my view it is, however, better to register the customary marriage as soon after the ceremony as possible - while you are still on a good footing with your new in-laws," he suggests.
"If your husband decides to separate from you and the relationship with your in-laws turns sour, they might not be willing to come and testify that the customary union was concluded." Manyike further cautions that a lobola letter alone is not necessarily proof enough that a valid customary marriage was concluded. He counselled a woman whose parents had been married for 25 years in a customary marriage. After her father's death her mother wanted to take ownership of his taxi business. The mother only had a lobola letter as proof of the customary marriage.
Yet, the master of the High court found that such a letter on its own did not prove such a customary union existed. "Couples need to solemnise a customary marriage through a customary celebration and proceed to register the marriage with home affairs," he suggests.
In court cases where the existence of a customary marriage is disputed by one party on grounds that lobola was not paid in full, judges generally do not entertain that defence as long as lobola was fixed.