Legal Articles

Property rights and customary marriages

The Recognition of Customary Marriages Act was brought into question during a legal battle wherein the parties felt that they had been discriminated against for being in Venda customary marriages.

As a result of this issue being disputed, part of the Act was held to be inconsistent with the Constitution was thus declared to be invalid on Thursday, 30 November 2017. 

Customary marriages & customary law

In section 7 (1) of the Act it stipulated that customary marriages were governed by customary law. 

This along with the Venda custom that gave ownership and authority over the marital property to the husband clashed with the Constitution. 

Because this section only applies to African women, it thus only serves to discriminate against women who are party to a polygamous marriages. 

This in turn targets individuals on the basis of their gender, racial and ethnic background and social origin.

This ruling truly is a major victory for women who have all too often been under the control of male heirs of their marital mates due to marrying within historically patriarchal systems.

Polygamous customary marriages 

The women who were party to polygamous customary marriages usually had no form of recourse as a result of the specific laws that governed the marital arrangement. 

Elderly women were vulnerable in situations where there were divorced or in the event of their husbands passing away. 

It was obvious that something had to be done to protect such individuals and to provide relief. Although this issue had been raised in another case in 2008, the altering of the Act only occurred in this recent court ruling. 

In a previous constitutional case between Gumede v President of RSA, the judgement of the case only took into account the right of individuals who were party to monogamous customary marriages. However, the judgement in the recent case gave further clarity on the subject. 

Previously, the section was only declared invalid with regards to monogamous customary marriages. As a result of this recent decision the previous ruling now applies to polygamous customary marriages as well. It is important to note however that this section does not apply to a religious marital arrangement.

African women who were previously governed by the laws associated with customary marriages will finally be able to have joint and equal ownership along with management and control over their marital property. Truly a day for celebration for such individuals. 

With only 24 months to correct this legislation, the Parliament surely have their work cutout for them.

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