Parliament has until 30 November 2019 to rectify Sections 7(1) and (2) of the Recognition of Customary Marriages Act 10 of 1998 (herein after ‘the RCMA’) in line with the Constitutional Court (herein after the ‘CC’) ruling in Ramuhovhi and Others v President of the Republic of South Africa and Others (CCT194/16) [2017] ZACC 41 (30 November 2017).

In terms of Section 7(1) of the RCMA, "the proprietary consequences of customary marriages entered into before the commencement of the RCMA continue to be governed by Customary Law.” What this means, is that customary marriages entered into before the commencement of the RCMA (15 November 2000) are regarded as being out of community of property and not subject to the accrual system — resulting in the wives in Customary Marriages possessing no marital property rights.

Additionally, in terms of Section 7(2) of the RCMA, a customary marriage entered into after the coming into operation of the RCMA in which a spouse is not a partner in any other existing customary marriage is a marriage in community of property, and of profit and loss. The section was declared constitutionally invalid and the words "entered into after the commencement of the Act" are to be severed from the subsection.

What does the Bill provide?

The Bill provides that:-

The proprietary consequences of a customary marriage in which a person is a spouse in more than one customary marriage, and which was entered into before the commencement of the Act, are that the spouses in such a marriage have joint and equal:

(a) ownership and other rights; and

(b) rights of management and control, over marital property.

The abovementioned rights must be exercised –

(a) in respect of all house property, by the husband and wife of the house concerned, jointly and in the best interests of the family until constituted by the house concerned; and

(b) 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.

Each spouse retains exclusive rights over his or her personal property and that for purposes of Section 7(1) of the Act the terms "marital property", "house property", "family property" and "personal property" have the meaning ascribed to them in customary law.

What the Amendments seek to achieve

In light of the Ramuhovhi case, the amendments will provide equal treatment to women in pre-Act customary marriages and eliminate the gender-based discrimination in customary marriages entered into before the commencement of the RCMA. Therefore, Section 7(1) of the RCMA as was declared constitutionally invalid based on gender, race and ethnic or social origin as it perpetuates inequality. Parliament will correct inequality between husbands and wives who entered into customary marriages before the commencement of the RCMA.

The effect of the Commencement of the Act

The consequences of the Amendments will mean that spouses married in terms of customary law before or after the commencement of the RCMA, without registering an antenuptial contract, is a marriage in community of property and of profit and loss between the spouses. However, parties who wish to enter into a customary marriage but would like to exclude such consequences may do so by entering into an antenuptial contract which regulates the matrimonial property system of their marriage.

Conclusion

In light of the Constitutional Court (CC) ruling in the Ramuhovhi case, the declaration of the constitutional invalidities was suspended for 24 months from November 2017 to allow Parliament to correct the defect giving rise to constitutional invalidity. Failure by Parliament to correct the defect by 30 November 2019 will result in the CC interim order becoming final. Therefore, the correcting of the Act to remove the constitutional invalidity is inevitable.

Written by Petrus Khumalo, Candidate Attorney, Schoeman Law