PER/PELJ - Pioneer in peer-reviewed, open access online law publications
Author Fatima Osman
Affiliation University of Cape Town, South Africa
Email Fatima.Osman@uct.ac.za
Date Submitted 11 November 2022
Date Revised 19 April 2024
Date Accepted 19 April 2024
Date Published 8 May 2024
Editor Prof C Rautenbach
Journal Editor Prof W Erlank
How to cite this contribution
Osman F "The Proprietary Consequences of Customary Marriages: Challenges in the New Regime(s)?" PER / PELJ 2024(27) - DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a17238
Copyright
DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a17238
Abstract
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The law governing marriage in South Africa is in transition. There |
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Keywords
Customary marriage; proprietary consequences; Marriage Bill.
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1 Introduction
The law governing marriage in South Africa is in transition. In January 2021 the South African Law Reform Commission (SALRC), mandated by the Department of Home Affairs, released Discussion Paper 152, Single Marriage Statute, with proposals for a single marriage statute in South Africa to elicit responses for further deliberations thereon. The proposed legislation did not regulate the proprietary consequences of marriage on the basis that it would be dealt with through an investigation into matrimonial property law.
1
Fatima Osman B Bus Sci LLB LLM PhD (UCT). Associate Professor, Faculty of Law, University of Cape Town. Email: Fatima.Osman@uct.ac.za. ORCID: https://orcid.org/0000-0002-1357-7840. 1 SALRC Project 144, Discussion Paper 152. This was preceded by an issue paper, being the SALRC Project 144, Issue Paper 35. 2 DHA 2024 https://www.dha.gov.za/index.php/about-us. 3 DoJ & CD 2024 https://www.justice.gov.za/legislation/acts/acts_full.html.
In June 2023 the SALRC, mandated by the Department of Justice, released Discussion Paper 160, Review of Aspects of Matrimonial Law, setting out preliminary proposals for regulating matrimonial property laws.
4
4 SALRC Project 100E, Discussion Paper 160. 5 The purpose of the Bill is to rationalise the laws regarding marriage and to provide an overarching framework for the regulation of all marriages regardless of how they are entered into. The preamble notes the fragmented manner in which family law has developed and therefore proposes an umbrella statute to ensure the fair legislative regulation of marriages.
The release of the Draft Marriage Bill without the preceding SALRC report into the matter raised eyebrows for several reasons. First, the result was that the state, through different departments, produced two vastly different proposals for reforming South African matrimonial law. The differences highlighted the problem of having law reform performed in silos, with state departments not speaking to each other. Secondly, it is questionable why the SALRC's report was not publicised after the investment of significant time, money, and resources into its production. Finally, the Draft Marriage Bill differed significantly from the initial proposals found in Discussion Paper
152. For example, the Draft Marriage Bill regulated the proprietary consequences of marriages, in conflict with the explanation that this would be investigated elsewhere, and did not recognise life partnerships, raising questions about what had precipitated the change in the approach.
The process culminated in the release of the Marriage Bill [B43-2023] (the Marriage Bill) in December 2023. This article critically evaluates the implications of the Marriage Bill and the SALRC's proposal on matrimonial property law reform for the proprietary consequences of customary marriages – as they represent two different approaches to the matter. To contextualise the discussion, the contribution first provides an overview of the current regulation of the proprietary consequences of customary marriages and the most pertinent issues associated therewith. It thereafter examines the Marriage Bill and the SALRC's proposal for matrimonial property law reform, as it relates to customary marriages.
2 Current legal framework
The regulation of the proprietary consequences of customary marriages is an ongoing contentious issue in South African law, which has resulted in two landmark Constitutional Court cases
6
6 Gumede v President of the Republic of South Africa 2009 3 SA 152 (CC); Ramuhovhi v President of the Republic of South Africa 2018 2 SA 1 (CC). 7 Recognition of Customary Marriages Amendment Act 1 of 2021. See Johnson 2023 Acta Juridica for a discussion of the Constitutional Court's impact on the proprietary rights of women in customary marriages.
2.1 Pre-Amendment Act
The Recognition of Customary Marriages Act (the RCMA or the Act) initially drew two distinctions regarding the regulation of the proprietary consequences of marriage. First, the Act distinguished between monogamous and polygamous customary marriages and then between marriages based on the date the marriage was concluded.
8
8 For a discussion of the impact of the Recognition of Customary Marriages Act 120 of 1998 (the RCMA), see Mamashela 2004 SAJHR 616-641.
The Act (before its amendment) provided that monogamous customary marriages concluded after the commencement of the Act (hereafter referred to as new marriages) were in community of property unless the parties provided otherwise in an antenuptial contract.
9
9 Section 7(2) of the RCMA.
of the Act (hereafter referred to as old marriages).
10
10 Section 7(1) of the RCMA. 11 Gumede v President of the Republic of South Africa 2009 3 SA 152 (CC). For a discussion of the case see Bekker and Van Niekerk 2009 SAPL 206-222 and Himonga "Constitutional Rights of Women" 322-324.
Concerning old polygamous marriages (polygamous customary marriages concluded before the commencement of the Act), the Act provided that they would be regulated by customary law.
12
12 Section 7(1) of the RCMA. In the regulation of old customary marriages, the RCMA did not initially distinguish between monogamous and polygamous customary marriages. Both were regulated by s 7(1) of the Act. 13 Ramuhovhi v President of the Republic of South Africa 2016 6 SA 210 (LT). For a critique of the High Court judgment see Osman and Himonga 2017 J Legal Plur 166-182. 14 Ramuhovhi v President of the Republic of South Africa 2018 2 SA 1 (CC) para 71. For a discussion of the case see Kohn 2017 SAJHR 120-137 and Weeks 2021 CCR 1-41. 15 This is generally understood to be property controlled by the family head of which he is not the owner and which other family members share in, not just the spouses; Pienaar "Law of Property" 120. 16 Ramuhovhi v President of the Republic of South Africa 2018 2 SA 1 (CC) para 71. 17 Property which is allotted or accrues to a specific house (which consists of a wife and her children) and is to be used for the benefit of that house; Bennett Customary Law 256. 18 Ramuhovhi v President of the Republic of South Africa 2018 2 SA 1 (CC) para 71. 19 Ramuhovhi v President of the Republic of South Africa 2018 2 SA 1 (CC) para 71.
on principles submitted by the Women's Legal Centre Trust without ascertaining the living customary law on the matter, a point I return to later.
20
20 Women’s Legal Centre Trust Heads of argument in Ramuhovhi v President of the Republic of South Africa 2018 2 SA 1 (CC). For a discussion of the Constitutional Court’s approach to the ascertainment of customary law see Osman 2019 J Legal Plur 98-113.
The proprietary consequences of new polygamous customary marriages (polygamous marriages concluded after the commencement of the Act) are meant to be regulated by a contract contemplated in section 7(6) of the RCMA. Section 7(6) of the RCMA states that a husband who wishes to conclude a further customary marriage must apply to a court to approve a written contract regulating the matrimonial property system of his marriages. If the existing marriage was in community of property, the court is empowered to terminate the matrimonial property system and ensure an equitable distribution of the property.
21
21 Section 7(7) of the RCMA. 22 Section 7(8) of the RCMA. 23 Section 7(7)(b)(iii) of the RCMA. 24 MN v MM 2012 4 SA 527 (SCA). For a discussion of the case see Maithufi 2013 THRHR 688-696 and Van Niekerk 2013 SAPL 474-481. 25 Ramuhovhi v President of the Republic of South Africa 2018 2 SA 1 (CC) paras 31 and 35.
2.2 Post-Amendment Act
In 2021 the legislature brought into force an Amendment Act to give effect to the jurisprudence discussed above, with the result that the proprietary consequences of customary marriages are currently governed as follows:
7 Proprietary consequences of customary marriages and contractual capacity of spouses
(1)
(a) 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 this Act, are that the spouses in such a marriage have joint and equal-
(i) ownership and other rights; and
(ii) rights of management and control,
over marital property.
(b) The rights contemplated in paragraph (a) must be exercised-
(i) 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; and
(ii) 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.
(c) Each spouse retains exclusive rights over his or her personal property.
(d) For purposes of this subsection, "marital property", "house property", "family property" and "personal property" have the meaning ascribed to them in customary law.
(2) A customary marriage 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 between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.
(3) ...
(4) …
(5) …
(6) A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.
(7) When considering the application in terms of subsection 6-
(a) the court must-
(i) in the case of a marriage which is in community of property or which is subject to the accrual system-
(aa) terminate the matrimonial property system which is applicable to the marriage; and
(bb) effect a division of the matrimonial property;
(ii) ensure an equitable distribution of the property; and
(iii) take into account all the relevant circumstances of the family groups which would be affected if the application is granted;
(b) the court may-
(i) allow further amendments to the terms of the contract;
(ii) grant the order subject to any condition it may deem just; or
(iii) refuse the application if in its opinion the interests of any of the parties involved would not be sufficiently safeguarded by means of the proposed contract.
(8) All persons having a sufficient interest in the matter, and in particular the applicant's existing spouse or spouses and his prospective spouse, must be joined in the proceedings instituted in terms of subsection (6).
It is apparent that the Amendment Act is a codification of existing jurisprudence on the proprietary consequences of customary marriages, but it falls short of comprehensively regulating the proprietary consequences of customary marriages.
26
26 For a critique of this see Osman 2020 SALJ 389-407. 27 Osman 2020 SALJ 404. 28 Upon divorce, however, the court has the power to grant an equitable order taking into account all relevant factors, s 8(4)(b) of the RCMA. 29 Osman 2020 SALJ 404-405.
Furthermore, and perhaps more importantly, the question of whether jurisprudence and now the Amendment Act adequately cater to customary interests requires an understanding of how customary entitlements to property, particularly land, may function.
Customary law ownership of land is characterised by multi-layered and nested notions of entitlements to property, with the effect that various family members may exercise an entitlement to a single property.
30
30 Cousins "Characterising 'Communal' Tenure" 111.
rights and privileges of others."
31
31 Cousins "Characterising 'Communal' Tenure" 111. 32 Cross 1992 SAJHR 312. 33 Cousins "Characterising 'Communal' Tenure" 111. 34 Ramuhovhi v President of the Republic of South Africa 2016 6 SA 210 (LT) para 61.
All of this seems like an effort to put a square block into a round hole- trying to force foreign concepts of individual ownership and matrimonial property regimes onto a traditional system that operates on a basis of communal rights, subject to the welfare of the members of the family unit and administered by the family head.
The problem with the Amendment Act is that it ignores the fact that individual notions of ownership may not be appropriate in regulating customary forms of property. Rather, the Amendment Act provides that monogamous customary marriages are in community of property unless provided otherwise with no mention of how customary forms of property (such as house and family property) will be regulated in such marriages. The assumption appears to be that house and family property do not exist in monogamous customary marriages. However, this is conceptually incorrect. The existence of family property is not determined by whether the marriage is monogamous or polygamous; rather, it is a factual question of whether such property exists. Thus, it is more important to determine whether property functions as family property by being used to sustain family members and being administered by a custodian for future use, rather than the classification of the marriage.
35
35 For a description of a "collective family house" see Bolt and Masha 2019 SAJHR 156.
Unfortunately, the Amendment Act regulates the matrimonial proprietary regime on the basis of the type of marriage. It provides that a monogamous customary marriage creates a single joint estate owned by spouses to exclude other family members.
36
36 Section 7(2) of the RCMA.
property to which family members have an entitlement, even though the property is registered in the name of a spouse. For example, imagine a scenario in which an immovable property is registered under the name of Abongile. Abongile never lives in the house. Rather, his siblings live in the house, which is referred to as a collective family home. In divorce proceedings Abongile's wife claims half of the immovable property because the parties were married in community of property and the property forms part of the joint estate. This phenomenon of a family property’s being registered in the name of a single person has surfaced in several cases in which parties dispute entitlements to the property based on its being a family property.
37
37 Shai v Makena Family 2013 JDR 0608 (GNP); Khwashaba v Ratshitanga (27632/14) [2016] ZAGPJHC 70 (29 February 2016); Hadebe v Rambau (2021/26962) [2022] ZAGPJHC 89 (21 February 2022); Nedbank Limited v Molebaloa (37780/2015) [2016] ZAGPPHC 863 (12 August 2016) and for a discussion of this case see Brits 2018 SA Merc LJ 348-367.
It is noteworthy that the Act acknowledges the distinction between house and family property in the regulation of the consequences of polygamous marriages.
38
38 Section 7(1)(b) of the RCMA. 39 Section 7(1)(d) of the RCMA. 40 Ramuhovhi v President of the Republic of South Africa 2016 6 SA 210 (LT) para 55.
the various forms of property without further elaboration may be insufficient.
41
41 For a further discussion of the issue see Osman 2020 SALJ 397-402 and Osman 2023 De Jure 13-24.
In summary, the current regulation of the matrimonial proprietary consequences of customary marriages does not adequately reflect customary law entitlements to property or reflect a comprehensive reconciliation of the jurisprudence on the matter. Thus, reform of this area of law is urgently needed. But law reform on the matter must be informed by customary law understandings of how family property functions today, the entitlements it confers, and how they are invoked. The failure to do so risks distortions of customary law, the erasure of people's rights
42
42 For a discussion of how property rights may be erased when poorly regulated see Osman 2020 SALJ 402-404. 43 Himonga "Constitutional Rights of Women" 317.
While there is some contemporary research on the concept of family property,
44
44 Himonga and Moore Reform of Customary Marriage 254-255 and Bolt and Masha 2019 SAJHR 147-168.
3 Marriage Bill, 2023
In July 2022 the Department of Home Affairs published the Draft Marriage Bill and invited comments up until 30th August 2022. In just under 8 weeks the Department of Home Affairs solicited public comments on a controversial bill that seeks to regulate and reform South African marriage law comprehensively. The process culminated in the Department of Home
Affairs’ release of Marriage Bill [B43-2023] in December 2023. The Marriage Bill proposes the complete repeal of the RCMA,
45
45 Schedule 2, clause 20 of the Marriage Bill [B43-2023] (the Marriage Bill).
3.1 Monogamous marriages
The Marriage Bill mandates the parties to choose their matrimonial proprietary regime and states that "[p]rior to solemnisation of a marriage, the prospective spouses must voluntarily choose the matrimonial property system that will apply to their marriage."
46
46 Clause 15(2) of the Marriage Bill.
Customary marriages come into existence over a period of time, and it is generally difficult to identify the specific point at which a marriage is concluded.
47
47 This is evinced by the plethora of case law in which parties dispute the existence of a customary marriage. For example, see Mabuza v Mbatha 2003 4 SA 218 (C); Fanti v Boto 2008 5 SA 405 (C); Mbungela v Mkabi 2020 1 SA 41 (SCA) and Motsoatsoa v Roro 2010 JDR 1392 (GSJ). 48 Mbungela v Mkabi 2020 1 SA 41 (SCA); Mrapukana v Master of the High Court 2008 JOL 22875 (C) para 25. For a discussion of the requirements of a marriage see Osman and Barratt "Customary Marriages" 301-302; Himonga and Moore Reform of Customary Marriage 59 and the cases cited therein; Nkuna-Mavutane and Jamneck 2023 PELJ 1-30; Bapela and Monyamane 2021 Obiter 186-193; Radebe 2022 De Jure 77-86; Osman 2020 Stell LR 80-90 and Bakker 2022 PELJ 1-21.
It may be that the Bill envisages that customary spouses will select their matrimonial proprietary regime at the time of registration of the marriage. Under the RCMA, spouses are obliged to register their marriage,
49
49 Section 4(1) of the RCMA. 50 Section 4(9) of the RCMA; Mrapukana v Master of the High Court 2008 JOL 22875 (C) para 31. 51 De Souza 2013 Acta Juridica 239.
The Bill provides for the registration of a customary marriage
52
52 Clause 13 of the Marriage Bill. 53 Clause 13(5) of the Marriage Bill. 54 Clause 13(7) of the Marriage Bill.
Accordingly, there is no point at which a state official can compel prospective spouses to select a matrimonial property system before the conclusion of the marriage. Parties may thus conclude a customary marriage without selecting their matrimonial proprietary regime, a possibility not provided for by the Bill. It raises the question: what are the consequences of parties failing to select a matrimonial proprietary regime?
Despite the peremptory language used in the clause, selecting a matrimonial property system does not appear to be a requirement for the conclusion of a marriage. Here the Supreme Court of Appeal's approach to section 7(6) of the RCMA is instructive. The Supreme Court in MN v MM held that section 7(6) of the RCMA aims to regulate the proprietary consequences of a marriage and not to invalidate an otherwise valid marriage that complies with the requirements set out elsewhere in the RCMA.
55
55 MN v MM 2012 4 SA 527 (SCA) paras 22-23.
It is more likely that in the common scenario of parties failing to select a matrimonial proprietary regime, the courts will extend the common law default matrimonial proprietary system of in community of property to customary marriages. But this lacunae in the Bill and ambiguity in consequences should be corrected before the Bill is enacted.
3.2 New polygamous marriages
With respect to new polygamous marriages, clause 6 of the Bill provides:
6. Requirements for polygamous marriage
(2) A husband in a marriage who wishes to enter into a further marriage after the commencement of the Act must -
(a) obtain written consent from his wife or, in the case where there is more than one wife, his wives, as the case may be: Provided that, in the case of a royal family, the consent must be in accordance with the customs and traditions of such family; and
(b) make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.
The section then duplicates the provisions of the RCMA to regulate the content of the contract which regulates the proprietary consequences of polygamous marriages.
56
56 The provisions have been discussed previously. 57 MN v MM 2012 4 SA 527 (SCA). The Supreme Court of Appeal held in obiter that the second marriage is likely to be out of community of property. For a case discussion, see Himonga and Pope 2013 Acta Juridica 318-338; Kruuse and Sloth-Nielsen 2014 PELJ 1709-1738 and Maithufi 2013 De Jure 1078-1088. 58 In MM v MN 2013 4 SA 415 (CC) the Constitutional Court held that in future the consent of the first wife would be required for a subsequent customary marriage but did not specify the form of consent. The Bill specifies that written consent is required and this form of consent may prove difficult to obtain. 59 The Department of Home Affairs has not released data on the number of contracts concluded in terms of 7(6) of the RCMA. In 2010 the Department indicated that about three contracts had been registered; Women’s Legal Centre Recognition of Customary Marriages 18.
3.3 Old polygamous marriages
The proprietary consequences of old polygamous customary marriage are governed by clause 15(1) of the Bill, which provides that:
The proprietary consequences of a polygamous marriage entered into before the commencement of this Act, which was not registered in terms of the Recognition of Customary Marriages Act or any other law, and where the spouses do not intend to enter into further marriages, continue to be governed
by law applicable to such marriage or the agreement concluded between the spouses.
This provision is a significant change from that in the RCMA (as amended), which, as discussed previously, distinguishes between various forms of customary property and different rights thereto. At first glance the proposed clause appears simpler, but its interpretation is unclear. The clause provides that the marriage will be "governed by the law applicable to such marriage or the agreement concluded between the spouses." In the absence of an agreement between the parties, which is likely to be the case, what law applies to such marriages? It cannot be the current provisions of the RCMA, as the Bill repeals the RCMA in its entirety.
60
60 Schedule 2 of the Marriage Bill. 61 Ramuhovhi v President of the Republic of South Africa 2018 2 SA 1 (CC) paras 31 and 43.
Furthermore, the clause applies where the marriage was not registered in terms of the RCMA or any other law and where the spouses do not intend to enter into further marriages. Regarding the first requirement, it is unclear why the Bill has linked the regulation of the proprietary consequences of marriage to its registration. There may be an assumption that if the marriage is registered, the parties would have concluded a contract contemplated in section 7(6) of the RCMA to regulate the proprietary consequences of the marriage, which renders statutory regulation unnecessary. This assumption may be based on the Department of Home Affairs’ practice of refusing to register a polygamous marriage without a contract as required in terms of section 7(6) of the RCMA.
62
62 In Molokane v Williams (2015/12381) [2023] ZAGPJHC 1210 (24 October 2023) it was reported that the registration of a customary marriage was not allowed without a court order issued in terms of s 7(6) of the RCMA.
registration of the marriage with no contract regulating the proprietary consequences of the marriage. The marriage, which would be registered but with no accompanying contract regulating the proprietary consequences of the marriage contract, would not be covered by clause 15(1) the Bill.
The second requirement in the clause is that parties "do not intend to enter into further marriages". How this requirement may be tested and/or applied, and its usefulness or relevance is unclear. The parties' intentions may vary; while parties may not intend to conclude a further marriage initially, this may change later. Or what if the parties intend to conclude a further customary marriage but have not done so? Why should the mere intention, with no further action, affect their proprietary rights? It is unclear that the courts will look at the intention of the parties, which is hard to ascertain, rather than the actual state of affairs. The section's ambiguity results from poor drafting and it should be corrected before passing the Bill.
In conclusion, the Marriage Bill creates several lacunae in regulating the proprietary consequences of customary marriages. The failure to provide a default marriage system for monogamous customary marriages would leave many parties in an unregulated space, and the requirement of a contract regulating the proprietary consequences of a polygamous customary marriage would probably invalidate many polygamous marriages. The ambiguity in rights and the invalidation of marriages would serve only to further disenfranchise our most vulnerable citizens. These are pressing concerns that could be addressed with the provision of a default matrimonial system – as proposed by the SALRC and discussed below – and that would not require a contract to regulate the proprietary consequences of a marriage for it to be deemed valid.
4 Discussion Paper 160: Review of aspects of matrimonial property law
In June 2023 the SALRC issued a Discussion Paper on its investigation into South Africa's matrimonial property law. This was a separate and parallel investigation to that conducted by the Department of Home Affairs and its Marriage Bill set out above, and the article explores whether the proposals in the Discussion Paper address some of the deficiencies in the Marriage Bill and the current matrimonial property framework.
4.1 Monogamous marriages
The SALRC provides two default marital property system options for monogamous marriages and life partnerships.
63
63 SALRC Project 100E, Discussion Paper 160 ch 2.
family property. The default regime remains an in-community property estate, provided that customary family property is excluded from the joint estate.
64
64 SALRC Project 100E, Discussion Paper 160 25. 65 SALRC Project 100E, Discussion Paper 160 25-26.
Regarding option two, which the SALRC favours, the SALRC recommends excluding customary family property but also proposes a change of the default matrimonial proprietary regime.
66
66 SALRC Project 100E, Discussion Paper 160 26. 67 SALRC Project 100E, Discussion Paper 160 26. 68 SALRC Project 100E, Discussion Paper 160 26. 69 Section 6(4)(b) of the Matrimonial Property Act 88 of 1984 (the Matrimonial Property Act).
As customary marriages are rarely registered,
70
70 Himonga and Moore Reform of Customary Marriage 59 and Budlender et al Women, Land and Customary Law 74. Also, see De Souza 2013 Acta Juridica for a discussion on the impact of non-registration. 71 Certain assets such as an inheritance, legacy and donation, (s 5(1) of the Matrimonial Property Act) and damages for non-patrimonial loss (s 4(1)(b)(i) of the Matrimonial Property Act) are excluded in the calculation of accrual. 72 This is perhaps best illustrated by an example. Assume spouse A has an estate of R100,000 and spouse B has an estate of 0. At the end of the marriage, the value of spouse A's estate is R150 000, and spouse B’s estate is R10 000. If the commencement value of the estate is deemed to be 0, then spouse A's estate would show an accrual of R150 000, while spouse B’s estate would have an accrual of R10 000. Spouse A must share half the difference in the accrual (R150 000 – R10 000) / 2, being R 70 000 with spouse B. But if the commencement value is set at the actual value of the estates (being 100 000 and R0), then Spouse A's accrual would be R50 000 and Spouse B’s R10 000, and Spouse A must share (R50 000 – R10 000) / 2, being R 20 000 with spouse B.
The out-of-community default property regime brings the important change that spouses have separate estates and are no longer jointly liable for debts
incurred in the marriage. This means that upon the termination of the marriage, people cannot be saddled with crippling debt incurred by their spouses during the existence of the marriage. Spouses nonetheless remain jointly and severally liable to third parties for household necessities proportional to their means, as an invariable consequence of marriage.
73
73 Barratt "Personal Consequences of Civil Marriage" 212. 74 Barratt "Personal Consequences of Civil Marriage" 211-213.
The SALRC furthermore recommends that the courts have a general discretion to redistribute assets in divorce proceedings in marriages that are out of community without accrual with no further stipulation as to when the marriage must have been concluded.
75
75 SALRC Project 100E, Discussion Paper 160 75. 76 EB (born S) v ER (born B); KG v Minister of Home Affairs 2024 1 BCLR 16 (CC). 77 As contained in s 7(3) of the Divorce Act 70 of 1979. 78 Matrimonial Property Act 88 of 1984.
The SALRC has further invited comments on whether judicial discretion should be extended to all marriages regardless of the marital regime.
79
79 SALRC Project 100E, Discussion Paper 160 75. 80 Gumede v President of the Republic of South Africa 2009 3 SA 152 (CC) paras 41-44.
notion of public policy to determine the enforceability of a contract.
81
81 SALRC Project 100E, Discussion Paper 160 76. 82 SALRC Project 100E, Discussion Paper 160 76.
While judicial discretion may in theory sound ideal, in practice it may be problematic. For courts to exercise their discretion, they would most likely have to hear from the parties themselves in action proceedings with witnesses, instead of resolving the matters on the papers. This may have the unintended consequence of lengthening proceedings and increasing the costs of divorce proceedings. It thus may be better to limit the exercise of judicial discretion to instances where the parties have concluded an antenuptial contract to exclude accrual and where family property is involved – a point I return to later.
Finally, it must be noted that any change to the default matrimonial proprietary regime will take a significant time before it is understood and implemented by parties.
83
83 For a discussion of the limitation of statutory interventions see Himonga "Constitutional Rights of Women" 317.
What is significant is that the SALRC's proposal addresses the fundamental critique of the current regulation of monogamous customary marriage: that family property is subsumed into the joint estate. The proposals exclude customary family property, which is now regarded as an excluded asset. But it nonetheless remains uncertain how family property is meant to be understood and will be treated in the legal framework. If family property is understood only as property in rural areas and held under customary tenure, this does not address the problem. Immovable property located in rural areas is currently excluded from the process of the formal administration of estates because of the lack of title deed and valuation, though the exclusion is not provided for in the statute.
84
84 Osman Administration of Customary Law Estates 81. 85 Osman Administration of Customary Law Estates 81.
inserted exclusion is significant only if implemented by courts to encompass property held under a title deed, often by the husband, but that serves the broader family interests and functions as family property. It is the definition and understanding of family property that will be important. As discussed previously, defining family property broadly in terms of customary law may not be the solution, as courts tend to rely on official and dated accounts of customary law. Here the SALRC must research how communities understand and treat family property. These understandings would not have to be codified in the statutory provisions but would provide useful guidance to courts in understanding the notion of family property today and exercising their discretion in respect of such property.
The Discussion Paper does not specify how customary family property will be regulated except that the parties should be compensated for substantial renovations to the customary family property that does not form part of the matrimonial estate.
86
86 SALRC Project 100E, Discussion Paper 160 118.
On the other hand there may be circumstances in which a woman has lived on the property for years and made substantial improvements thereto. To assert that the property is family property to deny the woman's claims thereto would be problematic especially in cases where the property may be the woman’s home and other family members are considered to have negligible entitlements thereto. Court discretion here is important because of the varied circumstances in which claims around family property may arise and the impossibility of effectively legislating for every scenario.
Accordingly, the SALRC's recommendation that the court have the discretion to redistribute assets upon the dissolution of a marriage must encompass family property. The property is rightfully excluded from the marital estate, as parties should not be able to exercise individual ownership
rights over such property, but it should not be excluded from the court's discretion. While this may seem theoretically problematic as the court may be exercising discretion over property that is not part of an individual's estate, it is reconcilable given the nature of customary law property. Family property is property that is not owned by an individual and therefore must be excluded from the marital estate, as otherwise there would be a risk of subsuming such property into the marital estate and erasing the entitlements of the greater family to the property. But allowing the courts the discretion to re-distribute such property is an acknowledgment that in some cases it may be just and equitable to order the re-distribution of the property - for example, where a spouse has contributed thereto - and in other cases it may not. The discretion does not mean that the property must or will always be re-distributed; rather, the distribution should be determined taking all relevant circumstances at the time into account.
As family property is a social fact and not determined by the type of marital regime, courts must have discretion regarding the redistribution of family property upon divorce, regardless of the type of marriage. This means that the court's discretion must be regulated in a nuanced manner. Courts should not have a general discretion to re-distribute property in all marital regimes, but they must have the discretion to re-distribute family property regardless of the matrimonial proprietary regime. This is because of the myriad of circumstances in which claims to family property may arise. Discretion regarding the distribution of family property is essential for protecting interests. For example, there may well be circumstances in which a spouse who has contributed to the family property should share therein, whereas in other circumstances this may yield an unjust result.
This approach finds support in the current legislative regulation of customary law estates. The Reform of Customary Law of Succession Act
87
87 Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 (the Reform Act.) 88 Intestate Succession Act 81 of 1987. 89 Section 5(1) of the Reform Act.
In summary, the SALRC's proposal concerning monogamous customary marriages is conceptually sound and far better than that which the Department of Home Affairs has proposed. The proposals must be reconciled and the SALRC's should hopefully shape the reform.
4.2 Polygynous marriages
In polygynous marriages the SALRC proposes two options for regulating the proprietary consequences of the marriage where the husband failed to conclude a contract as contemplated in section 7(6) of the RCMA. Regarding option one, each wife retains "the right of use over the property in her own 'house'. The husband retains control over the family customary property if any. Personal property is retained individually by the spouses."
90
90 SALRC Project 100E, Discussion Paper 160 117-118.
In terms of option two:
[t]he husband and all his wives share property in community, excluding family property but subject to the court's discretion to deviate from equal distribution and considering the following factors: (a) duration of each marriage; (b) husband's knowledge of requirements in section 7(6) of the RCMA; (c) wives' knowledge of husbands' marriage(s) to other women; (d) spouses' financial and non-financial contributions; (e) a wife's right of use and control over house property; (f) the treatment of lobolo in respect of each marriage.
91
91 SALRC Project 100E, Discussion Paper 160 117-118.
Earlier on, the SALRC also proposes that the court considers several factors, such as knowledge of the spouses (presumably being the husband's knowledge of requirements in section 7(6) of the RCMA and the wives' knowledge of the husbands' marriage(s) to other women) and their relative contributions to the marriage, in the determination of the applicable regime
92
92 SALRC Project 100E, Discussion Paper 160 26-27. 93 SALRC Project 100E, Discussion Paper 160 26-27.
In this regard, research on the proprietary rights of spouses in polygamous marriages is limited, we require further research to understand how individuals experience and exercise their property rights and how they wish them to be regulated. Hopefully the solicitation for input on the SALRC's Discussion Paper will yield real insights into the matter so that further proposals are anchored in living practice. However, the SALRC must also carry out independent research to ensure that customary law reform is done
carefully and taken seriously. We must be cautious of proposing reform without understanding the law's nuances and people's needs. Customary law is found in the practices of people
94
94 For a discussion of the differences between living and official customary law see Himonga and Bosch 2000 SALJ 319-331; Diala 2017 J Legal Plur 143; Bennett '''Official' v 'Living' Customary Law" 138; Sanders 1987 CILSA 405; Himonga and Nhlapo African Customary Law 27; Bekker and Maithufi 1992 JJS 47 and Diala 2017 J Legal Plur 143-165. 95 For a discussion of the consequences of the statutory regulation of customary law see Osman 2019 PELJ 1-24.
5 Conclusion
South African family law may be described "as an embarrassment of riches"
96
96 Smith and Robinson 2010 PELJ 30-75. 97 The Marriage Act 25 of 1961, the Civil Union Act 17 of 2006 and the RCMA. 98 Namely the Draft Muslim Marriages Bill (2011) and the Draft Domestic Partnership Bill (2008).
In this regard the Department of Home Affairs is urged to release the report by the SALRC on a potential Single Marriage Statute and to consider carefully the recommendations made by the SALRC in its Discussion Paper on the Review of aspects of matrimonial property law. The SALRC's recommendations for reform address current socio-economic issues by proposing a change in the default matrimonial proprietary regime to one of out of community of property without accrual and excluding family property from the marital estate. These constitute significant shifts in our law that seem to take cognisance of the lived realities of people and bring customary law concepts of property more firmly into our law. Furthermore, it is hoped that the Discussion Paper will solicit meaningful input as to the regulation of polygamous marriages so that any recommendation to protect people's rights is guided by practice.
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EB (born S) v ER (born B); KG v Minister of Home Affairs 2024 1 BCLR 16 (CC)
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Motsoatsoa v Roro 2010 JDR 1392 (GSJ)
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Shai v Makena Family 2013 JDR 0608 (GNP)
Legislation
Civil Union Act 17 of 2006
Divorce Act 70 of 1979
Intestate Succession Act 81 of 1987
Marriage Act 25 of 1961
Matrimonial Property Act 88 of 1984
Recognition of Customary Marriages Act 120 of 1998
Recognition of Customary Marriages Amendment Act 1 of 2021
Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009
Government publications
Draft Domestic Partnership Bill (2008)
Draft Marriage Bill (2022)
Draft Muslim Marriages Bill (2011)
Marriage Bill [B43-2023]
Internet sources
DHA 2024 https://www.dha.gov.za/index.php/about-us
Department of Home Affairs 2024 About Us https://www.dha.gov.za/ index.php/about-us accessed 17 April 2024
DoJ & CD 2024 https://www.justice.gov.za/legislation/acts/acts_full.html
Department of Justice and Constitutional Development 2024 Acts/Statutes Administered by the Department https://www.justice.gov.za/legislation/ acts/acts_full.html accessed 17 April 2024
List of Abbreviations
CCR |
Constitutional Court Review |
---|---|
CILSA |
Comparative and International Law Journal of Southern Africa |
DHA |
Department of Home Affairs |
---|---|
DoJ & CD |
Department of Justice and Constitutional Development |
J Legal Plur |
Journal of Legal Pluralism and Unofficial Law |
JJS |
Journal for Juridical Science |
PELJ |
Potchefstroom Electronic Law Journal |
RCMA |
Recognition of Customary Marriages Act 120 of 1998 |
SA Merc LJ |
South African Mercantile Law Journal |
SAJHR |
South African Journal on Human Rights |
SALJ |
South African Law Journal |
SALRC |
South African Law Reform Commission |
SAPL |
Southern African Public Law |
Stell LR |
Stellenbosch Law Review |
THRHR |
Tydskrif vir Hedendaagse Romeins-Hollandse Reg |