| (a) |
The proprietary consequences of a in which a person is a spouse in more than one customary marriage, and which was entered into before the commencement of , are that the spouses in such a marriage have joint and equal— |
| (i) |
ownership and other rights; and |
| (ii) |
rights of management and control, |
over marital property.
| (b) |
The rights contemplated in paragraph (a) must be exercised— |
| (i) |
in respect of all house property, by the husband and wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and |
| (ii) |
in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses. |
| (c) |
Each spouse retains exclusive rights over his or her personal property. |
| (d) |
For purposes of this subsection, ‘marital property’, ‘house property’, ‘family property’ and ‘personal property’ have the meaning ascribed to them in customary law. |
[Section 7(1) substituted by section 2(a) of the Recognition of Customary Marriages Amendment Act (Act No. 1 of 2021), GG44646, Notice No. 319, dated 1 June 2021]
| (2) |
A customary marriage in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage. |
[Section 7(2) substituted by section 2(b) of the Recognition of Customary Marriages Amendment Act (Act No. 1 of 2021), GG44646, Notice No. 319, dated 1 June 2021]
| (3) |
Chapter III and sections 18 , 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984 (Act No. 88 of 1984), apply in respect of any customary marriage which is in community of property as contemplated in subsection (2). |
| (a) |
Spouses in a customary marriage entered into before the commencement of this Act may apply to a jointly for leave to change the matrimonial property system which applies to their marriage or marriages and the court may, if satisfied that— |
| (i) |
there are sound reasons for the proposed change; |
| (ii) |
sufficient written notice of the proposed change has been given to all creditors of the spouses for amounts exceeding R500 or such amount as may be determined by the of Justice by notice in the Gazette; and |
| (iii) |
no other person will be prejudiced by the proposed change, |
order that the matrimonial property system applicable to such marriage or marriages will no longer apply and authorise the parties to such marriage or marriages to enter into a written contract in terms of which the future matrimonial property system of their marriage or marriages will be regulated on conditions determined by the court.
| (b) |
In the case of a husband who is a spouse in more than one customary marriage, all persons having a sufficient interest in the matter, and in particular the applicant’s existing spouse or spouses, must be joined in the proceedings. |
| (5) |
Section 21 of the Matrimonial Property Act, 1984 (Act No.88 of 1984) is applicable to a customary marriage entered into after the commencement of this Act in which the husband does not have more than one spouse. |
| (6) |
A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages. |
| (7) |
When considering the application in terms of subsection 6— |
| (i) |
in the case of a marriage which is in community of property or which is subject to the accrual system— |
| (aa) |
terminate the matrimonial property system which is applicable to the marriage; and |
| (bb) |
effect a division of the matrimonial property; |
| (ii) |
ensure an equitable distribution of the property; and |
| (iii) |
take into account all the relevant circumstances of the family groups which would be affected if the application is granted; |
| (i) |
allow further amendments to the terms of the contract; |
| (ii) |
grant the order subject to any condition it may deem just; or |
| (iii) |
refuse the application if in its opinion the interests of any of the parties involved would not be sufficiently safeguarded by means of the proposed contract. |
| (8) |
All persons having a sufficient interest in the matter, and in particular the applicant’s existing spouse or spouses and his prospective spouse, must be joined in the proceedings instituted in terms of subsection (6). |
| (9) |
If a court grants an application contemplated in subsection (4) or (6), the registrar or clerk of the court, as the case may be, must furnish each spouse with an order of the court including a certified copy of such contract and must cause such order and a certified copy of such contract to be sent to each registrar of deeds of the area in which the court is situated. |
Public Service Commission Act, 1997
