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Patrimonial consequences

2 September 2010

INTRODUCTION
It would appear as if uncertainty prevails among the public at large and the legal fraternity as to the patrimonial and matrimonial consequences of marriages entered into between black spouses.

In this article it is endeavoured to provide more clarity on the consequences of black marriages in terms of the previous apartheid legislation.

CIVIL MARRIAGES IN TERMS OF THE BLACK ADMINISTRATION ACT 38 OF 1927

Position from 1929 to 1 December 1988
In terms of the repealed section 22(6) of the Black Administration Act 38 of 1927 (the "Act") civil marriages of black persons were automatically out of community of property, with the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 by the husband (see Ex parte Minister of Native Affairs: In re Molefe v Molefe 1946 AD 315 and Bopape v Moloto 2000 1 SA 383 T). In order to bring about community of property and of profit and loss, where no antenuptial contract was entered into and registered, black persons were obliged to make a declaration in this regard before a marriage officer, one month prior to the celebration of the marriage.

However, such community of property, etc. was only possible where the husband was not a party to a "customary union" with another spouse, other than the spouse who he intended marrying.

On 1 November 1984, the Matrimonial Property Act 88 of 1984 was enacted which inter alia abolished the marital power a husband had over a wife in a civil marriage, or in terms of common law. The effect hereof was that, as from 1 November 1984, the marital power which a husband had over his wife in terms of a marriage concluded in terms of the repealed section 22(6) of the Act was repealed with retrospective effect.

Effect of a civil marriage on an existing customary union
As the spouses in a customary "union" were not regarded as "legally married to one another", a spouse could at any time during the subsistence of such marriage conclude a valid civil marriage with another person. The effect of such civil marriage on the "customary union", was that such union was automatically dissolved (see Nkambula v Linda 1951 1 SA 377 (A) and Malaza v Mndaweni 1975 BAC (C) 45. The wife to such customary union was known as a "discarded wife" . The wife to such customary union could also contract a civil marriage with another person and similarly the existing union was automatically dissolved.

Section 22(7) of the Act protected "discarded wives" as follows:

"No marriage contracted after the commencement of this Act (1 January 1929) but before the commencement of the Marriage and Matrimonial Property Law Amendment Act 1988 (2 December 1988) during the subsistence of any customary union between the husband and any woman other than the wife shall in any way affect the material rights of any partner of such union or any issue thereof, and the widow of any such marriage and any issue thereof shall have no greater rights in respect of the estate of the deceased spouse than she or they would have had if the said marriage had been a customary union."

This protection of "discarded wife" has two main effects:

  • bringing about parity between civil marriages and customary marriages for estate purposes, only; and

  • paradoxically reviving the marital status of a so-called discarded wife.
Husbands of discarded wives found the latter non-palatable and devised a way around this paradox by merely making a bequest in favour of the discarded wife in order that the intestate succession (which always led straight to section 22(7)) would not apply.

Position from 2 December 1988
In terms of the Marriage and Matrimonial Property Law Amendment Act, Act 3 of 1988, which came into operation on 2 December 1988, the Black Administration Act of 1927 was amended.

The Amendment Act brought about the following changes:

1. The repeal of section 22(6)
The effect hereof was that all marriages in South Africa were put on par with one another and the Matrimonial Property Act 88 of 1984 was also made applicable to black marriages concluded after 2 December 1988. Marriages thus concluded from 2 December 1988 were automatically in community of property unless an antenuptial contract was entered into and registered within three (3) months of the attestation thereof before a notary in the deeds registry.

2. Restriction on marriage
Another important innovation was that the "customary union" was not automatically dissolved by the civil marriage. Section 22(1) of the Act prohibited a husband of a customary marriage from contracting a civil marriage with another woman during the subsistence of such customary marriage (see Thembisile v Thembisile 2002 2 SA 209 T and Kwitshane v Magalela 1999 4 SA 610 (TK)).

Unfortunately no sanction was provided for where such civil marriage took place subsequent to the customary marriage. It is, however, averred that such civil marriage is void. It is for this reason that practitioners must ensure that no valid customary marriage was concluded prior to the civil marriage.

Section 3(2) of the Recognition of Customary Marriages Act 120 of 1998 now also prohibits a spouse who is a party to valid customary marriage from entering into a civil marriage, in terms of the Marriage Act 25 of 1961.

Dual marriages in Transkei
A dual marriage is a marriage whereby the same spouses marry each other according to two different regimes, none of which is superior to the other. It is a hybrid marriage fusing together elements of custom and civil marriage. This often leads to confusion as to the exact marital regime applicable to the marriage; whether civil or customary. To galvanize this confusion into total mystery is the fact that such fusion of two different regimes may take place approximately a year apart. Section 39 of the former Transkei Marriages Act 21 of 1978 allowed parties in a dual marriage to further conclude a customary marriage provided the existing marriage was out of community of property. Alternatively those parties to a customary marriage could conclude a civil marriage as long as such civil marriage was out of community. In the latter case it made things even more complicated by making it a dual marriage. That what has always been perceived to be a civil marriage may in a year or more be customized and celebrated as an indigenous marriage. For example, in the dual marriages of the erstwhile Republic of Transkei a couple would celebrate a traditional wedding (which is of course based on customary rites) and thereafter on the same day solemnize the traditional wedding in church or in a civil registry thereby giving it a civil outlook.

There are various permutations to a dual marriage one of which is the opposite of the above scenario namely; a civil marriage is concluded first and thereafter the civil marriage is solemnized with customary rites.

Proof of dual marriages
A registration certificate endorsed to the effect that the marriage was further celebrated according to civil/Christian rites. In fact the current position is that for the long existing dual marriages the parties decide which status prevails between customary and civil and their decision is endorsed accordingly.

One striking feature and a tell-tale sign of a dual marriage is that, whether from the outset it starts off as a civil marriage or not, a dual marriage (at least in the former Transkei) would always be preceded by a so-called lobolo agreement locally known as ikhazi.

Basically what happens in dual marriages is that the parties combine a lobolo agreement, a traditional marriage and a civil rites marriage into a hybrid marriage of an indeterminate regime.

The thorny question that arises therefore is the exact form of proof prescribed in respect of a dual marriage. This is very interesting for deeds examiners, in particular, as they do not consult with the parties. More especially considering the fact that RCR 31 of 2005 requires proof from the Department of Home Affairs or a Court Order as proof of customary marriages.

The answer depends on whether the dual marriage has been endorsed as civil or customary. If it has been endorsed as civil, a marriage certificate is accepted as proof. Whereas if the dual marriage has been endorsed as customary, RCR 31 of 2005 finds application.

The marital status created by a dual marriage
Cognizance must be taken of the fact that two rites are fused into one indeterminate marital status, one civil or Christian and the other customary and it thus becomes difficult to ascertain which marital status actually applies to a marriage.

In order to solve the problem of indeterminate status, the civil rites were allowed an overriding effect over customary rights. Therefore the dual marriage was deemed to be civil, especially in view of the fact that customary unions were generally seen as repugnant and therefore not recognized.

However, there is still a lot of confusion among the parties surrounding the issue of marital status probably because marital status is a legal concept in itself of which none of the parties are concerned with at time of conclusion of the marriage.

Therefore the following complexities are rife:
  1. A and B enter into a dual marriage and the latter is deemed to be a civil marriage. The husband is unconscious of the marital status and mistakenly thinks it is a customary marriage. He migrates to the mines in Johannesburg and marries another woman by Christian rites. The latter marriage is void.

  2. A and B enter into a dual marriage and the latter is deemed to be a customary marriage. The husband this time knows that the marriage is deemed to be a customary marriage. With the backing of section 39 of the Transkei Marriages Act 21 of 1978, he migrates and takes another wife and marries her by civil/Christian rites (out of community of property). The latter marriage nullifies the dual-customary marriage. Consequently his dual marriage wife is discarded. The above position applied at least before 2 December 1988 (before promulgation of the Matrimonial Property Act 3 of 1988).

However this clarity was extinguished by the very Matrimonial Property Act by providing that a civil marriage will no longer nullify a customary union and later by the Recognition of Customary Marriages Act 120 of 1998 by recognizing the indigenous status of customary marriages entered into prior to the Act, and nullifying civil marriages concluded during the subsistence of customary unions.

Although dual marriages have been discontinued by virtue of the Recognition of Customary Marriages Act 120 of 1998, the remnants of such marriages still continue to tax the minds of various practitioners.

Section 7(1) Act 120 of 1998 recognizes a customary marriage concluded before 15 November 2000 in its pure indigenous form (this could also include a dual marriage made customary). Section 10(1) prohibits the conclusion of a civil marriage during the subsistence of a customary marriage unless between two spouses married to each other by customary rites (see Thembisile and Another v Thembisile and Another 2002 (2) SA 209 (T)).

This proves that instead of solving the complexities surrounding the issue of dual marriages, legislation aggravated the mystery behind it.

The current position is that spouses are allowed to decide whether their dual marriage is customary or civil and their decision is endorsed on their certificate.

Black marriages in terms of section 35(1) of Act 16 of 1995
In terms of the provisions of Section 35(1) of the KwaZulu Legislative Assembly Act (16 of 1985) (KwaZulu Act on the code of Zulu Law 16 of 1985) a civil marriage between citizens contracted after the commencement of the Act shall produce the legal consequences of a marriage out of community of property between the spouses, provided that the intending spouses may at any time within one month of the celebration of such marriage declare jointly before any Commissioner, or Magistrate, or other Marriage Officer, that it is their intention and desire that community of property and profit and loss shall be included in their marriage, except with regard to any land in the location held under quitrent tenure which land shall be exclusive from such community. The definition of a citizen was governed in terms of the National States Citizenship Act No. 26 of 1970 which was repealed in terms of Schedule 7 of Act 200 of 1993, and in terms of Section 3 thereof defined that every Black person shall be a citizen of particular Territorial Authority Area:

  • if he was or is born in that area from parents one of whom were or are citizens of that Territorial Authority Area at the time of his birth;

  • if he has made application for Citizenship of a Territorial Authority Area having lived in such Territorial Authority Area for a period of five years;

  • if he is not a citizen of any other Territorial Authority Area and speaks any Black language used by the Black population in a particular Territorial Area including any dialect; and

  • if he is not a citizen of any other Territorial Authority Area and is related to any member of the Black population of a particular Territorial Authority Area, or has identified himself with any part of such population, or is associated with any part of such population by virtue of his cultural or racial background.


It would therefore appear that a marriage between two "KwaZulu" citizens between the 27th March 1987 and the repeal in terms of Schedule 7 of Act 200 of 1993 (in 1994) are out of community of property, by virtue of the provisions of Section 35(1) of the KwaZulu Black Administration Amendment Act of 1998, KwaZulu Government Notice No. 105/1988, and accordingly should be described as such.

In terms of the Matrimonial Property Act No. 88 of 1984, the Act was applicable to Blacks with effect from the 2nd December 1988 as Act 3 of 1988, being the Marriage and Matrimonial Property Law Amendment Act (by Proclamation 203 of 1988) amended various sections, but it appears from the amendment of those sections 21 and 25 that it only referred to marriages governed by Section 22(6) of Act 38 of 1927. In view of the provisions of Section 35(1) of the KwaZulu Act which was with effect from the 28th November 1986 and only repealed in terms of Act 200 of 1993 with effect from the 27th April 1994, KwaZulu citizens who were married during this period irrespective of the provisions of the Matrimonial Property Act, appear to have been married out of community of property until such time as the Act is repealed. Accordingly KwaZulu citizens married between 2nd December 1988 and 27th April 1994 are married out of community of property in terms of Section 35(1) of KwaZulu Act No. 16 of 1985.

Remnants of section 22(6) and description of parties
Practitioners will recall the typical handwritten marriage certificates issued under the Black Administration Act 38 of 1927, in respect of a civil marriage between blacks with its characteristic section 22(6) endorsement.

It is not so much the pre1994 dates and the cursive handwriting that is interesting with these certificates, but the fact that they all bear a section 22(6) endorsement, irrespective of the regime. This being regardless of the fact that a black person had applied for a marriage in community of property (section 22(6)).

The adverse effect of this situation is that one simply assumes that such marriage certificates are invariably proof that the marriage is in community of property. Nothing can be further from the truth.

A careful scrutiny of the fine print thereon often reveals that the marriage is out of community of property due to the words used. The following are typical examples of the section 22(6) endorsements on the marriage certificates:




A. Black Civil Marriages MICP B. Black Civil Marriages MOCP

Failure to distinguish between the above often leads to dire discrepancies for example:
  • allowing a section 45(1) application in respect of a surviving spouse who was married out of community of property; or

  • allowing a transfer by one spouse, who was in fact married in community of property, his/her spouse joining or consenting in terms of section 15(2)(a) Matrimonial Property Act 88 of 1984.

CONCLUSION
Practitioners must be wary when consulting with parties who entered into marriages in the former TBVC States or in terms of the Black Administration Act 38 of 1927. Should the marriage certificates not be available, affidavits obtained from the parties must be clear and unambiguous.

The citing of parties incorrectly in deeds and documents, more specifically as to their matrimonial property regime can have dire consequences as to the legality of the transaction.

Wiseman Bhuqa
and Allen West
Deeds Training
PRETORIA


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