Customary Marriages in South Africa

Nozipho Mvulane

Customary Marriages in South Africa

Same rights for all women in polygamous customary marriages

Women married in polygamous customary relationships before the introduction of laws recognising customary marriages in 1998 will officially and finally receive the same rights as women in customary marriages concluded after 1998. The Constitutional Court in 2017 that wives married in polygamous customary marriages will continue to enjoy joint and equal ownership, control and management and other rights over family and marital property.

In the matter of Ramuhovhi and Another v The President of the Republic of South Africa under case number CCT194/14 concerns the validity of section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 (Customary Marriages Act). Section 7(1) of the Customary Marriages Act regulates the proprietary consequences of polygamous marriages entered before the Customary Marriages Act came into force on 15 November 2000.

Discrimination against women in polygamous customary marriages

The Constitutional Court in Ramuhovhi vs President of the Republic of South Africa, held that section 7(1) of the Customary Marriages Act, which regulates the proprietary consequences of customary marriages, was inconsistent with the Constitution and invalid on the basis that it discriminates unfairly against women in polygamous customary marriages. This is because this provision treats polygamous customary marriages concluded before its commencement in 1998 differently to monogamous and polygamous marriages entered after it was passed. This automatically be deemed to be concluded “out of community of property”.

Constitutionally invalid provision

The Constitutional Court agreed with the Women’s Legal Centre Trust, acting as the amicus curiae in the case, that “customary law left women in pre1998 Customary Marriages Act, polygamous customary marriages poor and dependent”.  This means that because these women do not have equal control over property within their marriages, they are vulnerable to eviction, homelessness and destitution.  They may also be left to care for children and remain in a position where finding employment or an alternative home is difficult for them.  This is particularly harsh for older women, further disadvantaged by the restriction’s apartheid placed on their education and freedom of movement.

The Constitutional Court found that section 7(1) of the act discriminates against women in pre-act marriages on the grounds of gender and marital status and that the section limits the right to human dignity and the right not to be discriminated against unfairly. There was no reasonable or justifiable reason to limit these constitutional rights, the court held section 7(1) to be invalid.

Joint and equal protection

The wives who are parties to such marriages shall have joint and equal rights of management and control over and in the marital property to their husbands, and these rights shall be exercised as follows:

  • In respect of all house property, by the husband and the wife of the house concerned, jointly and in the best interest of the family unit;
  • In respect of all family property, by the husband and all wives, jointly and in the best interest of the family unit;
  • In respect of personal property, a party shall retain exclusive rights to his or her personal property.

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