Tipping the Scales in Favour of Old Customary Marriages – A Critical Analysis of the Patrimonial Consequences of the Recognition of Customary Marriages Act

Abstract

The purpose of the Recognition of Customary Marriages Act 120 of 1998 is, inter alia, to ensure that all spouses in customary marriages are treated equally and have the capacity to regulate the patrimonial consequences of their marriages. Despite such aims, this Act differentiated between spouses married before and after the Act came into effect. This Act also provided more favourable matrimonial property consequences for spouses in monogamous customary marriages, thereby discriminating against spouses in polygamous customary marriages. It is, therefore, not surprising that this Act has been the subject of litigation in numerous court cases. The Constitutional Court, in the cases of Gumede v President of the Republic of South Africa and Ramuhovhi v President of the Republic of South Africa, declared section 7(1) and (2) of the Recognition of Customary Marriages Act unconstitutional. This resulted in the enactment of the Recognition of Customary Marriages Amendment Act 1 of 2021. The failure by the legislature to reconcile the changes introduced by the 2021 Amendment Act with the rest of section 7 of the Recognition of Customary Marriages Act has resulted in the Act providing for more favourable matrimonial property consequences for marriages concluded prior to its enactment, tipping the scales in favour of such marriages. This article focuses on section 7 of the Recognition Act, and specifically the requirements for changing a matrimonial property regime.