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The Conundrum of Customary Marriages

The Conundrum of Customary Marriages

Many an African man has dreamt of acquiring enough wealth to afford more than one household as having more than one wife means the growth of their lineage. Today, the custom lives on, with more young couples having such discussions about their future families. Best be prepared – there’s more to this than wealth and a big, beautiful family! Like all good things, there are legal aspects that protect the institution of customary marriages. The following is an outline of the legal position in relation to the proprietary consequences of customary marriages.

There are two types of customary marriages – Monogamous and Polygamous – the proprietary consequences of which are governed by the Recognition of Customary Marriages act, 120 of 1998.

A monogamous customary marriage is in community of property, with profit and loss, in the absence of an antenuptial contract. If this is not the intention of the spouses, the matrimonial system may be changed by way of a court application or by way of a postnuptial contract.

If the husband in an existing customary marriage wishes to contract a second customary marriage, he is required to launch a court application for the approval of a written contract which will regulate the future matrimonial property system of his marriages.

Where the proprietary consequences are not clearly spelt out in the proposed contract, there may be difficulties at the time of death of any of the spouses of a polygamous customary marriage; either because the property which belonged to the deceased was not adequately defined in the proposed contract, or no contract was approved by a court due to the husband’s failure to make such an application.

The court may allow further amendments to the terms of the proposed contract and grant the order, subject to conditions it may deem just, or it may refuse the application if the interests of the parties would not be sufficiently protected by means of the proposed contract.

The aim is to protect the interests of the existing spouses as well as those of the prospective spouse; as such, the act also provides that all persons who have a sufficient interest in the matter must be joined in the proceedings. Therefore, the husband, his wife, and the woman he wishes to marry, must be joint applicants.

In the case of a customary marriage in community of property, the court is authorised to terminate the said matrimonial property system and effect its division. This is to avoid unnecessary future litigation concerning the property of the female spouses.

That being said, if you have plans to enter into a polygamous customary marriage – after your wife, your lawyer is the right person to assist you with planning the journey ahead.

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