The recent amendments to the Act provide greater clarity regarding the proprietary consequences of customary marriages entered into before 1998.
In summary, the changes now allow spouses to share in the joint estate of their spouse upon dissolution of the marriage, whether they were married in terms of customary law before or after 1998, and whether it was a monogamous or polygamous marriage,
These are the changes:
1. The definition of traditional leader has been widened to mean: “Any person who, in terms of customary law of the traditional community concerned, holds a traditional leadership position and is recognised in terms of the applicable legislation providing for such recognition”.
2. Section 7(1) of the Act did not refer to polygamous marriages. This section now provides:
Section 7(1)(a). The proprietary consequences of a customary marriage in which a person is a spouse in more than one customary marriage, and which was entered into before the commencement of this Act, are that the spouses in such a marriage have joint and equal—
(i) ownership and other rights;
(ii) rights of management and control over marital property.
The rights contemplated in paragraph (a) must be exercised –
(i) in respect of all house property, by the husband and wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and
(ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.
a) Each spouse retains exclusive rights over his or her personal property.
b) For purposes of this subsection, ‘marital property’, ‘house property’, ‘family property’ and ‘personal property’ have the meaning ascribed to them in customary law.
3. Section 7(2) of the Act now provides that:
A customary marriage 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.
Thereby removing the issue of when the non-polygamous marriage was entered into entirely and making it irrelevant whether the marriage was entered into before or after the commencement of the Act.