14 July 2021
“My mother is a black woman who has been married since the early 1970’s to my father in accordance with customary law. They have never concluded a civil marriage, and my mother has also been our home provider while my father worked. Their marriage has become strained over the last couple of years, and I’m worried about my mother, should my father decide to divorce her. What are her marital rights?”
To answer your question, we must consider the recently enacted Recognition of Customary Marriages Amendment Act which came into force on 1 June 2021 (“Amendment Act”). The Amendment Act aims to amend the Recognition of Customary Marriages Act of 1998, by further regulating the proprietary consequences of a customary marriage entered into before 15 November 2000.
Section 7(1) of the Recognition of Customary Marriages Act previously determined that the proprietary consequences of a customary marriage entered into before the commencement of the Act, continues to be governed by customary law, essentially resulting in wives that had entered into a customary marriage before the commencement of the Act, not having any matrimonial property rights.
The constitutionality of this provision was reviewed by our Constitutional Court, which found the provision to be discriminatory against wives on the basis of gender, race and ethnicity and also perpetuated inequality between husbands and wives in polygamous marriages entered into before the commencement of the Act. The Constitutional Court called on Parliament to correct this unconstitutionality, resulting in the current Amendment Act being promulgated.
The Amendment Act therefore places men and women on equal footing when it comes to the proprietary consequences of customary marriages entered into even before the commencement of the Act in that women can now lay claim to the joint estate where they previously could not. Accordingly, should your mother and father consider a divorce your mother may in principle have a claim to the joint estate in accordance with the Amendment Act.