Legislation: Customary Marriages Act to be amended

A draft Recognition of Customary Marriages Amendment Bill released on Friday for comment by 15 June seeks to respond to a November 2017 Constitutional Court judgment declaring section 7(1) of the Act ‘inconsistent with the Constitution and invalid’, reports Pam Saxby for Legalbrief Policy Watch. The section concerned deals with the proprietary consequences of customary marriages and the contractual capacity of spouses. It was found to discriminate unfairly against women in polygamous customary marriages in place before the Act’s commencement on 20 November 2000.

Against that backdrop, the draft Bill provides that the spouses in such marriages have ‘joint and equal’ ownership and other rights, as well as ‘joint and equal’ rights of management and control over marital property. It is envisaged that these rights would be exercised jointly by a husband and each wife in respect of ‘house property’ shared by those two parties – ‘in the best interests of the family unit constituted by the house concerned’. Regarding ‘all family property’, those rights would be exercised jointly by the husband and all his wives ‘in the best interests of the whole family constituted by the various houses’, while each spouse would ‘retain exclusive rights over his/her personal property’. This is noting that the terms ‘marital property’, ‘house property’, ‘family property’ and ‘personal property’ have the meaning ascribed to them in customary law. The declaration of constitutional invalidity was suspended by 24 months, allowing Parliament sufficient time to ‘correct the defect’.