The National Assembly recently passed the Recognition of Customary Marriages Amendment Bill, which has fundamental financial implications regarding customary marriages in South Africa. The draft bill seeks to amend certain provisions of the Recognition of Customary Marriages Act (the Act) and bring the provisions of the Act in line with the Constitutional Court ruling in the Ramuhovhi case. The Constitutional Court confirmed that section 7(1) and section 7(2) of the Act are unconstitutional and are discriminatory against women who had entered customary marriages before the Act. The said provisions of the Act discriminated against polygamous customary marriages, which had the effect of excluding wives from participating, managing, and controlling the marital property.
The impact of the Bill
The Bill seeks to amend the Act by regulating proprietary consequences of customary marriages. Before the ruling made in the Ramuhovhi case, the position in South Africa was that spouses who had entered into polygamous customary marriages before the Act was promulgated were regarded as being married out of community of property. Under the Act, the husband had exclusive control and ownership of all matrimonial property. This put women married in accordance with the Act in a compromised position as they had no power or say over the assets acquired in the marriage. In other words, the husband would be able to sell the matrimonial home without the wife’s consent.
The Bill seeks to change this position: a spouse who is involved in more than one customary marriage, prior to the commencement of the Act, will have joint and equal rights and ownership over the matrimonial property.
Policy changes to the marriage legislation
The Department of Home Affairs is also making changes in the legislation of marriages, and the proposed changes will be submitted to cabinet in March 2021. According to the Department, the three existing marriage acts in South Africa still do not satisfactorily address religious marriages such as Hindu, Muslim, and some African customary marriages.
The Department is thus calling for a single piece of legislation that governs all marriages, which will be inclusive and considerate of the nation’s vast diversity and based on constitutional principles of equality and non-discrimination of cultural and religious beliefs.
The proposed changes to be adopted include:
- Provisions will be added concerning the age of marriage and the age of majority regarding marriages in relation to the Children’s Act.
- Matrimonial and divorce legislation will be aligned to address proprietary consequences and afford women protection and equality in respect of marriages and their dissolution, regardless of culture and religion.
- Marriage officers will need to renew their designation every five years to ensure that they are updated with current legislation and practices.
- Fraudulent marriages and marriages of convenience in respect of foreign nationals will be addressed.
- The provisions will enable, regulate and promote legally binding marriages for nationals of different sexual orientation, religious and cultural differences.
Contributor: Nthabiseng Kgomo
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