Source: DAVE WILLIAMS, COUNCILLOR: LIMPOPO LAW COUNCIL (with full credit to Mr Allen West)
Is a civil marriage concluded subsequent to a customary marriage valid or not?
CIVIL MARRIAGES
1. Marriages in terms of the Black Administration Act No. 38 of 1927 – Period 1929 to 1988
Civil marriages of Black persons were automatically out of community of property with the exclusion of profit and loss and with the retention of the marital power.
On 1 November 1984 the Matrimonial Property Act 88 of 1984 came into operation,
abolishing the marital power a husband had over his wife retrospectively.
2. The Marriage and Matrimonial Property Law Amendment Act No. 3 of 1988 (MMPLA) came into operation on 2 December 1988 – Period 1988 to 14 November 2000
From 2 December 1988 onwards, all civil marriages, including Black civil marriages, were put on par with one another and were automatically in community of property, unless an ANC was entered into prior to the marriage, and registered within 3 months of signature thereof in the Deeds Office.
CUSTOMARY MARRIAGES
1. Marriages in terms of the Black Administration Act No. 38 of 1927 – (Marriages entered into and dissolved in the period between 1929 and 1988)
Prior to coming into operation spouses in a customary “union” were not regarded as legally married to each other. Either spouse could, during the subsistence of this union, conclude a valid civil marriage with another person, having the effect of automatically dissolving the union. (Nkambula v Linda 1951 (1) SA 377 and Malaza v Mndawena 1975 (c) 45.
2. The Marriage and Matrimonial Property Law Amendment Act No. 3 of 1988 (MMPLA) came into operation on 2 December 1988 – (Marriages entered into between 1929 and 14 November 2000 and dissolved between 1988 and 14 November 2000).
Most importantly a customary union was not automatically dissolved by a civil marriage.
The MMPLA, which came into operation on 2 December 1988, amended the repealed Black Administration Act No. 38 of 1927 and the amended section provided that:
(i) a man and a woman between whom a customary union subsists are competent to contract a marriage with each other if the man is not also a partner in a subsisting customary union with another woman.
(ii) subject to sub-section (1) no person who is a partner in a customary union shall be competent to contract a marriage during the subsistence of that union.
(iii) a marriage officer could thus not solemnise a marriage where a man intended to marry a woman other than the one with whom he as a partner in an existing customary marriage.
Monogamous and polygamous marriages entered into prior to 15 November 2000 are only recognised if valid at customary law and WHICH EXIST at the time of the commencement of the Act.
Proprietary consequences of customary marriages entered into before 15 November 2000
The proprietary consequences of such a customary marriage can, at best, be regarded as out of community of property without the accrual system. The spouses may of course apply to Court to change their matrimonial regime.
3. Marriages in terms of the Recognition of Customary Marriages Act 1920 of 1998 – Marriages entered into prior to 14 November 2000 and dissolved after 14 November 2000
The Recognition of Customary Marriages Act 1920 of 1998 (RCM) came into operation on 15 November 2000 and is applicable to all customary marriages which have been concluded according to customary law concluded before or after 15 November 2000.
RCM now also prohibits a spouse who is a party to a valid customary marriage from entering into a civil marriage in terms of the Marriage Act 25 of 1961.
An interesting judgment of the SCA is Rudzani Netshituka v Joyce Munyadizwa Netshituka and others, Case 426/10.
Where the civil marriage was concluded before 15 November 2000 while there existed a customary marriage, the customary marriage is automatically dissolved and the civil marriage is valid.
However, where a civil marriage was concluded after 2 December 1988 onwards while there existed a customary marriage duly registered or not, the civil marriage is a nullity and the customary marriage valid.
Monogamous and polygamous customary marriages entered into after 15 November 2000 must comply with the requirements of the Act which are fully set out in Sections 3 and 7(6) of the RCM Act.
Proprietary consequences of valid customary marriages entered into after 15 November 2000
Monogamous customary marriages
If neither of the spouses are parties to any existing customary marriage, the marriage is in community of property unless an ANC is duly entered into.
Polygamous customary marriages
A husband wishing to contract a further customary marriage is required to obtain a Court Order.
Dissolution of customary marriages
All valid customary marriages, whether registered or not, must be dissolved by the Court, and furthermore, the Divorce Act No 24 of 1987 is applicable and such a marriage can consequently only be dissolved on the grounds of irretrievable breakdown of the marriage.
Dissolution of marriage by death
It, therefore, appears to me that as far as Administration of Estates is concerned one would have to ascertain if a customary union and/or marriage was concluded and then:
1) if the deceased passed away before 2 December 1988, one set of rules would apply;
2) if the deceased passed away between 2 December 1988 to 14 November 2000 another set of rules would apply and;
3) yet another set of rules for death from 15 November 2000 onward.
From a conveyancing and testamentary perspective, therefore, it is not merely sufficient to rely on a marriage certificate; it would be wise to obtain affidavits from both parties stating whether and when any customary marriage was entered into, prior to the conclusion of the civil marriage.
