The uncertainties regarding the applicable matrimonial property system(s) in polygamous customary marriages upon non-compliance with section 7(6) of the Recognition of Customary Marriages Act
This discussion assesses whether section 7(6) of the Recognition of Customary Marriages Act 120 of 1998 should be interpreted as a requirement for a valid subsequent customary marriage, in light of recent judgments of the North Gauteng high court, the supreme court of appeal and the constitutional court, all in respect of Ngwenyama. The purpose of the discussion is to critically examine the uncertainties surrounding the matrimonial property system(s) that arise in polygamous customary marriages should section 7(6) not be complied with.
The discussion is based primarily on the decision of the Supreme Court of Appeal in Ngwenyama that section 7(6) is not a requirement for a subsequent customary marriage to be valid, but also considers the judgments of the high court and constitutional court respectively. However, in analysing these three judgments, it becomes clear that the matter is all but clear-cut and that non-compliance with section 7(6) does have problematic consequences.
The case law under discussion contemplates the following scenario: Where a husband marries his first wife without an antenuptial agreement the marriage will be a marriage in community of property. This is in terms of section 7(2) of the act. However, if he marries a second woman and complies with section 3 but not with section 7(6), it may be that the husband will be married simultaneously both in and out of community of property. The second marriage will be a marriage out of community of property, but with no written document to this effect. This may potentially cause great uncertainty pertaining to matrimonial property. It is proposed that registration of a contract which regulates the matrimonial property system of a polygamous customary marriage must be a requirement for a further customary marriage. This is to ensure legal certainty in such marriages. But section 7(6) needs to be amended to place an obligation on both the man and the prospective wife to register such a contract. However, if the prejudices that might be suffered in instances where there is non-compliance with such a section are taken into account, the answer the courts are looking for might be to declare the subsequent marriage to be a putative one.