WOMEN WIN WITH CHANGES TO CUSTOMARY MARRIAGES BILL

Cyril Ramaphosa recently signed the Amended Customary Marriages Bill into law, meaning the rights of women in polygamous marriages are finally up to speed with our Constitution. Here’s what’s changed.

---

South Africa has one of the most progressive, liberal constitutions in the world, so it may come as a surprise that only in June were women in traditional marriages (including polygamous marriages) recognised as having the same rights as women in civil union marriages.

In June this year, President Cyril Ramaphosa signed into law the Amended Customary Marriages Bill (ACMB), which now gives women greater rights to a share of the estate in the event of divorce or death.

Before June, courts generally only recognised the financial and property rights of the husband in polygamous marriages officiated before 1998, when the Recognition of Customary Marriages Act 120 was passed. Wives had few, if any, rights in the event of death or divorce.

Related article: The customary way

HOW EXACTLY HAS THE BILL BEEN AMENDED?
‘The Bill seeks to empower women in polygamous marriages entered into before the commencement of the Recognition Act, by giving these women joint and equal ownership and other rights of management and control, which they previously did not enjoy under customary law,’ says Sam Mosambuka, Associate at Sandton-based Malatji & Co Attorneys.

Thanks to the amendment, all customary marriages are deemed ‘in community of property’, unless an antenuptial agreement was officiated beforehand. As such, women in customary polygamous marriages are entitled to joint ownership of both assets and liabilities.

Most importantly, the Bill acts retrospectively, which means it automatically applies to all customary marriages, polygamous or monogamous, entered into before 2000 (just after the original Customary Marriages Act was passed).

Although it is a step in the right direction, certain aspects of the ACMB are unclear, says Mosambuka – for example, the distinction between family property and house property. ‘It is likely that in future, especially in the case of death, the surviving spouses will approach the courts for direction in dealing with a deceased spouse’s estate,’ he says.

WHAT ABOUT FAMILY OPPOSITION?
What recourse is available to women if they face opposition from the spouse’s relatives? That depends, says Mosambuka. ‘In the case of divorce, the risk of interference by other family members is limited by Section 8(4)(b) of the Recognition Act, by empowering the court to make a just and equitable order.’ In other words, the court will evaluate the case on its particular circumstances before making a ruling.

In the case of death, however, it would depend on whether the spouse (husband) had a will – which would make matters fairly straightforward – or not, in which case ‘such interference can be challenged by way of an application to court seeking an order that would deal effectively with it. This is applicable to family property, house property and personal property.’

Essentially, the ACMB will need to be tested in court in order for any grey areas to be ironed out, but it’s worth celebrating that, for the first time in South African history, the marital rights of women in polygamous marriages are getting the legal recognition and support they deserve.

“The Bill seeks to empower women in polygamous marriages entered into before the commencement of the Recognition Act, by giving these women joint and equal ownership and other rights of management and control.” Sam Mosambuka

Related article: 5 Important things to know before getting married



POLYGAMY FOR WOMEN TOO
The courts currently only recognise a man’s right to have more than one spouse in a customary context. However, a Green Paper has been approved for comment by Cabinet this year that will pave the way for women to legally marry more than one man.

There is also some push towards legislation that unifies religious, customary, and civil marriage rights under one, universally applicable Act. In the meantime, the ACMB gives women in polygamous marriages essential legal leverage to defend their constitutional rights.

Related article: Questions to ask yourself before moving in together

FURTHER INFORMATION
Click here and click on the link for the Government Gazette.