Customary union declared valid in wives’ dispute
The weight that customary marriages carry was highlighted once again during a legal wrangle between two widows. Both “wives” claimed that they were legally married to their now-deceased husband. The first wife stated that she married her husband in 1991 in terms of customary law. The second wife stated that she was the “true wife” because she had legally married her husband in 2007 in terms of civil proceedings. Both wives claimed that they were entitled to their late husband’s estate, and each requested the Gauteng High Court in Pretoria to declare her marriage as being valid. However, when Steve Sibanyoni died in December 2020, he had no idea that his marriage to the second wife was invalid because, according to the court’s verdict after his death, he was still married to wife number one. After the deceased’s death, his first wife attempted to report his estate but was advised by the Master of the High Court that the second wife had been appointed as executor by virtue of her civil marriage with the deceased. The first wife, who had been married to Sibanyoni for more than 30 years at the time of his death, went to the High Court to have the Master dealing with his estate recognise her as the true wife. The first wife obtained confirmation from a traditional authority as her customary marriage was not registered with Home Affairs. She maintained that her customary marriage was not dissolved by the time her husband married the second wife and said the recognition of the Customary Marriages Act made her the lawful wife. The second wife, on the other hand, stated that her marriage was solemnised in a public ceremony and that the first wife knew of her marriage with the deceased and had not objected to it. Judge Cassim Sardiwalla said marriage in terms of customary law gives rise to some legal complexities. Sardiwalla said it must be examined whether the customs, traditions or rituals that must be observed in the negotiations and celebration of customary marriages have been complied with. These include the negotiations leading to the agreement on lobolo, as well as any other tradition, custom or ritual associated with these. If a customary marriage has not been concluded in accordance with customary law, it cannot be regarded as valid. The court found that the requirements for a valid customary marriage are thus similar to those prescribed for a civil marriage, except that a customary marriage had to be negotiated and entered into or celebrated in accordance with customary law. The judge referred to an earlier court judgment on this subject, in which it was said: “No hard and fast rules can be laid down; this is because customary law is a flexible, dynamic system, which continuously evolves within the context of its values and norms, consistent with the Constitution, so as to meet the changing needs of the people who live by its norms”. Although the Recognition of Customary Marriages Act makes it obligatory to register such a marriage, it does provide that a failure to do so does not affect the validity of that marriage. Sardiwalla declared the customary marriage between the first wife and the deceased valid and the civil marriage between the second wife and the deceased null and void. The Minister of Home Affairs was directed to expunge the civil marriage between the second wife and the deceased from the marriage register and to register the customary marriage. Reference List: Recognition of Customary Marriages Act 120 of 1998 Marriages Act 25 of 1961 Phele and Another v Sibanyoni and Others – Judgment: 15 July 2022 Mbungela and Another v Mkabi and Others 2020 (1) SA 41 (SCA) This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Matrimonial property regimes
My partner and I are getting married soon and have heard about the different matrimonial property regimes one can enter but I am not sure what the difference is and what each one entails. There are three types of matrimonial property regimes in South Africa. The three are marriage in community of property, marriage out of community of property with the inclusion of the accrual system and marriage out of community of property with the exclusion of the accrual system. When parties decide on either of the two latter, they must enter into a contractual agreement with one another before a notary public. It is important to understand what they all entail before one gets married. Marriage in community of property is the so-called “default” regime, because all marriages are deemed to be in community of property if an Antenuptial Contract is not concluded before the marriage. This is also the most popular regime because it is the easiest one to conclude. When two parties get married in community of property, their estates will be joined together. Every asset and liability each party had before getting married and acquires during the marriage will become one estate and on dissolution of the marriage, the estate will be divided equally between the parties. This system is based on the theory that each spouse, whether employed or at home running the household, contributes equally to the marriage and on dissolution of the marriage is entitled to share equally in the joint estate. It is important to note that when one enters this type of matrimonial regime, in some instances consent will be needed from the other party. One of the biggest disadvantages of this system is that if one party incurs debt, the debt will form part of the joint estate. When one enters into a marriage out of community of property with the accrual system, it means that the parties entered into a contractual agreement with one another, which is known as an Antenuptial Contract. This contract must be entered into before a notary public and has to be registered at the Deeds Office. In this regime, the two estates of the spouses before the marriage remain separate. No consent will be needed from the other spouse in order to handle his/her own affairs. The accrual system will be applicable at the dissolution of the marriage or upon death, whichever may occur first. What happens with the accrual is that whatever the parties acquired during the existence of the marriage, will be compared and the half of the difference in accrual will be owed by the estate which shows a larger accrual. On dissolution of a marriage out of community of property with the accrual system, inheritances and donations received by a spouse from a third party will not be included in the accrual. In a marriage out of community of property without the accrual system, each party’s estate will remain separate. This system enables parties to control their own estate and affairs independently and on the dissolution of marriage, the parties will retain their own assets and liabilities. It is important to note that even if parties are married out of community of property excluding the accrual system, both parties will have to contribute to the household as a married couple – it is one of the duties that arises from marriage. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Maintenance of surviving spouse
The idea of freedom of testation is a core value of South African law and enjoys wide protection. The Maintenance of Surviving Spouses Act, 27 of 1990, was drafted to give a spouse legal recourse if disinherited or negatively affected by the wishes of the testator, or in the case of intestate succession. The goal of this piece of legislation is to ensure a person is not left destitute after the death of their spouse. Who can claim? The definition of the Act describes a surviving spouse as follows: “survivor means the surviving spouse in a marriage dissolved by death.” What can be claimed? Section 2(1) of the Act determines as follows: “If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of her reasonable maintenance needs until her death or remarriage in so far as she is not able to provide therefor from her own means and earnings. What is the definition of own means? “own means” include any money or property or other financial benefit accruing to the survivor in terms of the matrimonial property law or the law of succession or otherwise at the death of the deceased spouse.” What is reasonable maintenance means? Section 3 of the Act determines as follows: “Determination of reasonable maintenance needs – In the determination of the reasonable maintenance needs of the survivor, the following factors shall be taken into account in addition to any other factor which should be taken into account: The amount of the estate of the deceased spouse available for distribution to heirs and legatees; The existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage; and The standard of living of the survivor during the subsistence of the marriage and age at the death of the deceased spouse.” The executor of the deceased estate has to take the requirements above into account when determining the amount of the claim against the estate. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)