Out of Community of Property: The Cost of Ignoring Section 7(6) of RCMA
In a not-so-recent judgment, the South Gauteng High Court in Johannesburg clarified the legal position of polygamous customary marriages that do not comply with Section 7(6) of the Recognition of Customary Marriages Act, 120 of 1998 (RCMA). The case, Molokane v Williams and Others (Case No. 2015/12381), underscores the importance of legal compliance in ensuring valid matrimonial property rights.
What Constitutes a Valid Polygamous Customary Marriage?
For a polygamous customary marriage to be valid under South African law, it must meet the following requirements in terms of Section 3 of the RCMA:
1. Consent & Age—Both spouses must consent to the marriage and must be over the age of 18
2. Customary Law Compliance—The marriage must be negotiated, entered into, or celebrated in accordance with the customs and traditions of the relevant community.
3. Existing Customary Marriage—If a husband is already in a customary marriage and wishes to take another wife, he must comply with Section 7(6) of the RCMA.
The Role of Section 7(6) in Polygamous Marriages
Section 7(6) of the RCMA mandates that before entering into a subsequent customary marriage, the husband must obtain court approval for a written contract that regulates the future matrimonial property system of his marriages. This provision ensures fairness and protects the property rights of the first wife.
In the Molokane case, the court found that while both marriages met the validity requirements under Section 3 of the RCMA, there was no evidence that the deceased had complied with Section 7(6) before marrying his second wife. As a result, the second marriage was deemed to be out of community of property.
Consent of the First Wife is a Material Requirement
A critical takeaway from this ruling is that the first wife’s consent is a material requirement for the subsequent marriage to be in community of property. Without compliance with Section 7(6), the first wife cannot be forced to share her 50% share of the joint estate with the second wife. This provision safeguards the financial interests of the first wife and ensures that she retains her rightful stake in the marriage's assets.
Key Takeaways from the Judgment
1. Mandatory Court Approval – A husband must obtain court approval for a contract regulating the matrimonial property system before entering into a subsequent customary marriage.
2. Legal Compliance Protects Rights – Failure to comply with Section 7(6) results in the new marriage being out of community of property, which means the second wife does not have automatic claims to joint assets.
3. First Wife’s Protection—The first wife’s consent is crucial, and she cannot be compelled to share her 50% share of the estate if the required contract is not in place.
Conclusion
This judgment highlights the importance of understanding and complying with the legal framework governing polygamous customary marriages. Failure to adhere to Section 7(6) of the RCMA has serious consequences, particularly concerning property rights. Prospective spouses in polygamous marriages must ensure legal compliance to avoid disputes and protect their financial interests.