Debunking Myths: Polygamous Marriage ≠ Automatic Property Sharing! Here’s Why
Polygamous customary marriages in South Africa are often misunderstood, particularly regarding their proprietary consequences. A prevalent misconception is that all such marriages are automatically in community of property. This article aims to clarify the legal framework governing these marriages, focusing on Section 7(6) of the Recognition of Customary Marriages Act 120 of 1998 (RCMA), and referencing pertinent case law to debunk this myth.
Understanding Section 7(6) of the RCMA
Section 7(6) of the RCMA stipulates that a husband intending to enter into a polygamous customary marriage must apply to the court for approval of a written contract that will regulate the future matrimonial property system of his marriages. This provision is designed to protect the property rights of all spouses involved by ensuring that there is a clear agreement on how assets will be managed and distributed.
Consequences of Non-Compliance with Section 7(6)
Failure to comply with Section 7(6) does not render the subsequent customary marriage invalid. However, it does have significant implications for the proprietary regime of the marriage. In the case of Ngwenyama v Mayelane and Another, the Supreme Court of Appeal held that non-compliance with Section 7(6) results in the subsequent marriage being valid but out of community of property.
The court stated: “I hold instead that the consequence of such non-compliance is that the subsequent marriage would be valid but that it would be one out of community of property.”
This means that, in the absence of a court-approved contract, the default matrimonial property system for the subsequent marriage is out of community of property, ensuring that the estates of the spouses remain separate.
Protection of the First Wife’s Property Rights
The requirement for court approval serves to safeguard the property interests of the first wife. Without a court-sanctioned agreement, the first wife retains her 50% share of the joint estate, and the second marriage does not automatically share in this joint estate. As noted by judgments:
“Without Section 7(6) compliance, the first wife’s 50% share remains hers alone.”
This underscores the importance of adhering to the legal requirements set out in the RCMA to ensure that all parties’ rights are protected.
Judicial Interpretation and Implications
The judiciary has consistently interpreted Section 7(6) as a mechanism to regulate the proprietary consequences of polygamous customary marriages, rather than as a determinant of their validity. In M M N v M F M and Another, the Supreme Court of Appeal emphasized that Section 7(6) does not affect the validity of the marriage but rather its proprietary consequences. The court highlighted that non-compliance results in the marriage being out of community of property, thereby maintaining separate estates for the spouses.
Conclusion
The belief that all polygamous customary marriages are in community of property is a misconception. South African law, through Section 7(6) of the RCMA and its judicial interpretations, establishes that without court approval of a matrimonial property contract, subsequent customary marriages are valid but operate under an out of community of property regime. This legal framework ensures the protection of existing spouses’ property rights and promotes clarity in the proprietary consequences of polygamous customary marriages.