Should a husband in a customary marriage wish to enter into a further customary marriage, subsequent to 15 November 2000 (date of coming into operation of the Recognition of Customary Marriages Act 120 of 1998, hereinafter referred to as “the Act”) with another woman during the subsistence of the first such marriage, section 7 of the Act provides that the second marriage must be preceded by an application to court (defined as a High Court, a family court, established under any law, and a Divorce Court, established under the Administration Amendment Act 9 of 1929) to approve a written contract which will regulate the future matrimonial system of the marriages.
Section 7 of the Act reads as follows:
“7 Proprietary consequences of customary marriages and contractual capacity of spouses
(1) The proprietary consequences of a customary marriage entered into before the commencement of this Act continue to be governed by customary law.
(2) A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.
(3) Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984 (Act 88 of 1984), apply in respect of any customary marriage which is in community of property as contemplated in subsection (2).
(4) (a) Spouses in a customary marriage entered into before the commencement of this Act may apply to a court jointly for leave to change the matrimonial property system which applies to their marriage or marriages and the court may, if satisfied that –
(i) there are sound reasons for the proposed change;
(ii) sufficient written notice of the proposed change has been given to all creditors of the spouses for amounts exceeding R500 or such amount as may be determined by the Minister of Justice by notice in the Gazette; and
(iii) no other person will be prejudiced by the proposed change, order that the matrimonial property system applicable to such marriage or marriages will no longer apply and authorise the parties to such marriage or marriages to enter into a written contract in terms of which the future matrimonial property system of their marriage or marriages will be regulated on conditions determined by the court.
(b) In the case of a husband who is a spouse in more than one customary marriage, all persons having a sufficient interest in the matter, and in particular the applicant’s existing spouse or spouses, must be joined in the proceedings.
(5) Section 21 of the Matrimonial Property Act, 1984 (Act 88 of 1984) is applicable to a customary marriage entered into after the commencement of this Act in which the husband does not have more than one spouse.
(6) A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.
(7) When considering the application in terms of subsection 6
(a) the court must
(i) in the case of a marriage which is in community of property or which is subject to the accrual system (aa) terminate the matrimonial property system which is applicable to the marriage; and (bb) effect a division of the matrimonial property;
(ii) ensure an equitable distribution of the property; and
(iii) take into account all the relevant circumstances of the family groups which would be affected if the application is granted;
(b) the court may
(i) allow further amendments to the terms of the contract;
(ii) grant the order subject to any condition it may deem just; or
(iii) refuse the application if in its opinion the interests of any of the parties involved would not be sufficiently safeguarded by means of the proposed contract.
(8) All persons having a sufficient interest I the matter, and in particular the applicant’s existing spouse or spouses and his prospective spouse, must be joined in the proceedings instituted in terms of subsection (6).
(9) If a court grants an application contemplated in subsection (4) or (6), the registrar of clerk of the court, as the case may be, must furnish each spouse with an order of the court including a certified copy of such contract and must cause such order and a certified copy of such contract to be sent to each registrar of deeds of the area in which the court is situated.”
It is clear that this section is aimed at protecting both the existing spouse or spouses and the new intended spouse by ensuring that the husband must obtain the court’s consent to a further customary marriage, albeit that such consent is expressed in proprietary terms. Both the existing spouse and the intending further spouse have a vital interest in having their relative proprietary positions safeguarded by the procedure that is laid down in sub-section (6). Most customary marriages are concluded by persons whose access to worldly goods is limited and whose financial security may be severely prejudiced by an earlier or the conclusion of another marriage if such fact is not disclosed to the spouses and dealt with by the contract and the court’s approval.
The question begging an answer is whether a failure to comply with the subsection leads to the invalidity of the subsequent further customary marriage.
If a further marriage was to be recognized in spite of a failure to comply with the Act, the additional wife might, as a result of a favourable marriage contract with the husband, receive considerable financial and other benefits to the detriment, possibly even to the total impoverishment, of the first spouse and her children. This would surely fly in the face of the Legislature’s intention.
In a recent unreported judgment handed down by Judge E Bertelsmann (see Mayelane v Ngwenyame and Another Case Number 29241/09) the Judge held as follows:
In the light of the common cause fact that the first respondent’s purported marriage to the deceased, entered into after the Act was promulgated, was not preceded by the conclusion of a contract as envisaged in section 7(6) of the Act, the purported marriage of the first respondent to the deceased as void.
Until the above case is overruled, it is quite clear that any polygamous customary marriage entered into after 15 November 2000 without an order of court as provided for in section 7(6) of the Act is void and not merely voidable.