1.

You are approached by Mrs Zuma who is entitled to spousal maintenance in terms of a
maintenance order granted at the time of her divorce. She is unhappy with the amount of
maintenance that she is receiving as she considers it insufficient to fulfil her shopping and
travel desires.
Advise Mrs Zuma on the principles that South African courts apply in deciding whether to
vary an existing maintenance order. Your answer should include an explanation of the
concept of ‘sufficient reason’. (15)

2.With reference to relevant case law, fully explain how the concept of ‘irretrievable
breakdown of the marriage relationship’, as articulated in section 4 of the Divorce Act 70 of
1979, has been interpreted and applied by South African courts. (15)

1
QUESTION 2-15

• Mr and Mrs Mkhize were married in community of property. Shortly after entering into the marriage, their financial
circumstances began to change rapidly as a result of their individual successful business ventures. Twelve months
after the conclusion of their marriage, the couple decided to change their matrimonial property system to one out of
community of property with the accrual system. The reason for the proposed change was that Mr Mkhize wanted to
protect Mrs Mkhize when she took time out of her business to take care of their baby once born. He knew that his
estate would continue growing while her estate would be stagnant until she resumed her business. The arrangement
they came to was that Mrs Mkhize would help Mr Mkhize in his business while at home, without any remuneration.
Mr Mkhize has approached you because one of his friends, a law student, told him that spouses could not change
their matrimonial property system during the subsistence of their marriage.

Fully advise Mr Mkhize on the present legal position regarding the alteration of the matrimonial property system during
the subsistence of a marriage and whether such alteration, if permissible, will apply retrospectively or prospectively.

2
 FAMILY LAW (LLB-
FAML-501)

MS GRACIOUS MHLABANE -
09 MAY 2024
STUDY UNIT THEME 2 AND 3:

STUDY UNIT THEME

2 :CIVIL UNIONS

STUDY UNIT THEME

3: CUSTOMARY
MARRIAGES

4
STUDY THEME 2:CIVIL UNION
Source references:
•Chapter 16 of Textbook
•Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC)
•Lesbian and Gay Equality Project v Minister of Home
Affairs 2006 (3) BCLR 355 (CC).
•Civil Union Act 17 of 2006.

5
STUDY THEME 2:CIVIL UNION
outcomes

1 2 3
1. Define a civil union. 2. List and discuss the 3. Discuss the
legal requirements for consequences of a civil
a valid civil union, refer union with reference
to authority. to authority.
Chapter 16: CIVIL UNION
❖ Introduction
• The Civil Union Act provides for the legal recognition of marriages
and civil partnerships, which are referred to as civil unions
• The Act was the legislator’s response to the Constitutional Court
decision of Minister o-f Home Affairs v Fourie Lesbian and Gay
Equality Project v Minister of Home Affairs 2006
• Previously the wording of spouse excluded same-sex partners the
benefits and responsibilities accorded to heterosexual partners
• Definition of civil union according to the Act is: a monogamous,
voluntary union of 2 persons, of 18 years or older, which is
solemnised + registered by way of either a marriage OR civil
partnership, in accordance with the procedures prescribed in this
Act.
• NB; besides the fact that Civil Unions can be entered by partners
of the same sex, the requirements and consequences are mostly
similar to those of civil marriages

7
 Chapter 16: Civil Union
➢ The legal requirements of a Civil Union

❖ Capacity to act
✔ Since it’s based on agreement both parties should have
capacity to act
✔ Minors cannot enter into a civil union even with the consent or
assistance from their guardian
❖ Agreement
✔ Intention to marry should be there both parties to answer in the
affirmative
✔ Unless agreement was done under duress, misrepresentation or
undue influence then parties cannot claim that there was no
agreement when they both gave affirmation
8
 Chapter 16: Civil Union

➢ The legal requirements of a Civil Union

❖ Lawfulness
✔ Marriage is monogamous thus should be unmarried prior
concluding the marriage
✔ Certain relationships makes the marriage to be unlawful, e.g.
adoptive parent and adoptive child, brother and sister etc

9
 Chapter 16: Civil Union
➢ Prescribed formalities
• Marriage officer
• Similar to civil marriages
• Objections to the marriage to be raised preceding the union
• Identity documents or affidavit
• Prior conclusion of the marriage, the marriage officer should ask if parties to the
union should have their union be known as a marriage or civil partnership
• All parties must be present and at least two witnesses
• To be between 8AM between 4PM
• The marriage certificate should be signed by both parties, witnesses and the
marriage officer
• Finally, the marriage should be registered

10
 Chapter 16: Civil Union
➢ Consequences of a Civil Union
❖ The legal consequences of a civil marriage or civil partnership in terms of
the civil union act are exactly the same as the consequences which flow
from a marriage in terms of the marriage act
❖ In terms of s13(1) of the Civil Unions Act
✔ All existing legalisation and the common law in which references are
made to marriage, spouse, husband and wife will include couples who
have entered into either a civil marriage or civil partnership in terms of
the Civil Union Act
✔ Despite the fact that same-sex couples can now marry under the civil
union act and enjoy the same status, benefits and responsibilities that
married couples enjoy under the Marriage Act, the lived reality, and
choice to marry is not available to many same-sex couples

11
Activity
Time
Compare Civil Unions with Civil Marriages. Discuss the
differences between the two types of marriages as
well as the similarities

12
 STUDY UNIT
THEME 3:
Customary
Marriages
• Source references:
• J Heaton & H Kruger South African Family
Law 4 ed LexisNexis (Part 3 of textbook –
Chapter 17) PAGE 217
• CASES:
• Gumede v President of the Republic of South
Africa 2009 (3) SA 152 (CC).
• MM v MN 2013 (4) SA 415 (CC).
• Hassam v Jacobs [2008] 4 AII SA 350 (C).
• LEGISLATIONS:
• Constitution of the Republic of South Africa,
1996.
• Civil Union Act 17 of 2006.
• Marriage Act 25 of 1961.
• Recognition of Customary Marriages Act 120
of 1998.
13
 STUDY UNIT THEME 3: Customary Marriages

Outcomes:

✓ 1. List and discuss the legal requirements for a valid customary marriage.
✓ 2. Demonstrate an in-depth understanding of the patrimonial consequences of a
customary
✓ marriage and control of the matrimonial property system relevant to authority.
✓ 3. Discuss the premise of polygynous marriages entered into before and after the
Recognition
✓ of Customary Marriages Act 120 of 1998.
✓ 4. Demonstrate an in-depth knowledge of the patrimonial consequences of a
customary
✓ marriage a minor has entered into without the requisite consent.
✓ 5. Demonstrate an in-depth knowledge of the termination of a customary marriage by
divorce
✓ and by death.
✓ 6. Discuss the co-existence of a customary marriage and a civil marriage or union.

14
Chapter 17:Customary Marriages

❖ Introduction
✔ Historically, customary marriages
received limited recognition
because they permit polygamy.
✔ With the introduction of the
Recognition of Customary
Marriages Act 120 of 1998, all
customary marriages are fully
validated, irrespective of the date of
their conclusion.
✔ However, there is a distinction
between customary marriages
entered into before and after the
introduction of this Act.

15
 Chapter 17:Customary Marriages
❖ Definition

✔ A customary marriage refers to a marriage that is entered

into in terms of customary law.
✔ Customary law is defined as: ‘the customs and usages traditionally
observed among indigenous African peoples of South Africa and
which form part of the culture of those people’.
✔ Customary marriages are regulated by the Recognition of
Customary Marriages Act (RCMA).
✔ RCMA became operational on 15 November 2000

16
 Chapter 17:Customary Marriages
❖ The legal requirements for a customary marriage
⮚ Customary marriages entered into before the commencement of the RCMA
✔ The RCMA gives customary marriages entered before the commencement of the RCMA legal
recognition if they comply with the customary-law requirements of a valid marriage
✔ Distinction is drawn between KZN and rest of the country ,Zulu customary law has been codified for
KZN
✔ Customary marriages entered into in KwaZulu-Natal were regulated by the KwaZulu Natal Act
on the Code of Zulu Law 16 of 1985 and Natal Code.
✔ In terms of these codes the bride had to publicly declare to the official
witness that that she is freely, and with her consent, entering into the marriage.
✔ If future spouse is a minor ,father or legal guardian must consent ,
✔ Spouse must not be within prohibited degree’s of relationship
✔ payment of lobola was not essential but was delivered to brides family
✔ Outside of KwaZulu-Natal, there were no legislations regulating the customary marriages.
✔ Most customary laws outside KZN further required bride to be handed over to grooms family and live
with husband
✔ A ceremony takes place in celebration of marriage
17
 Chapter 17:Customary Marriages
❖ Legal requirements for a Customary marriage
➢ Legal requirements for Customary marriages entered into after the
commencement of the RCMA:
1. The parties must be 18 years and above. Minor children can enter into a
customary marriage subject to obtaining consent from their
parent/legal guardian. If consent cannot be obtained, section 25 of
the Marriage Act applies.
2. Both prospective spouses must consent to enter into a customary
marriage. In MM v MN wife’s consent for polygamy pg 219 NB!!!
3. The marriage must be negotiated and entered into or celebrated in
accordance with customary law.
4. Although the Act does not require delivery of lobolo for the validity of a
customary marriage, delivery of lobolo continues because it is a
requirement under most systems of customary law ,Maluleke v Minister of
Home Affairs

18
 Chapter 17:Customary Marriages
❖ Registration of the marriage
✔ Spouses of a customary marriage need to register their marriage ,but failure to
register a marriage does not affect its validity.
✔ Marriages concluded after the commencement of the act had to be registered
within three months of the wedding or within any period gazetted by the minister
✔ The registration officer must register the marriage by entering the spouses' identity,
the marriage date, and any lobolo agreement including any other prescribed
particulars and must issue a certificate to the spouses
✔ A registration certificate is prima facie proof that the marriage exist
✔ If neither spouse requests registration, any party who has “a sufficient interest in the
matter” may request the registering officer to enquire into the existence of the
marriage and can issue one if satisfied
✔ The act also allows registration of customary marriages after the death of one or
both of the spouses

19
 Chapter 17:Customary Marriages
❖ The Patrimonial consequences of a customary marriage

❖ The patrimonial consequences of a

customary marriage depend on
whether the marriage is:
✔ monogamous or
✔ polygynous

20
 Chapter 17:Customary Marriages
❖ The patrimonial consequences of a customary marriage
❖ Monogamous customary marriages
✔ All customary marriages, regardless of when they were entered into, are in
community of property, profit and loss, unless an antenuptial contract was
signed and registered at the Deeds office, before the parties entered into the
customary marriage.
✔ Customary marriages entered into before the commencement of the RCMA were
subject to customary law. This was changed by the Constitutional Court in the
Gumede judgment.
✔ As a result of the Gumede judgement ,section 7(2) of the Recognition of
Customary Marriages Act(same rules as civil marriage) applies to every
monogamous customary marriage, regardless of the date on which the marriage
was concluded
✔ In Gumede case the husband owned and controlled all family property and the
wife had no claim to family property
✔ The CC held that depriving wives in some monogamous customary marriages of
a claim to family property because of the date on which they entered into their
marriage constitutes unjustifiable unfair discrimination on the ground of gender
21
 Chapter 17:Customary Marriages
❖ The patrimonial consequences of a customary marriage

❖ Monogamous customary marriages

✔ Section 7(2) provides that the matrimonial property system in
a monogamous customary marriage is determined by the
same rules that apply to civil marriages.
✔ Unless they enter into an antenuptial contract, they are
married in community of property
✔ Thus, the rules that govern administration of the joint estate,
are exactly the same in civil and customary marriages

22
 Chapter 17:Customary Marriages
❖ The patrimonial consequences of a customary marriage
❖ Polygynous customary marriages
▪ Polygynous customary marriage entered into before commencement of
the RCMA
✔ The patrimonial consequences of polygynous customary marriages are, in
the RCMA, regulated by section 7(1) which state that these marriages
continue to be regulated by customary law.
✔ The property of the whole group, consisting of the family head and all his
wives, forms one estate
✔ However, each wife occupies a different rank, which is determined by her
date of marriage. Thus, the first wife is the chief wife and all other wives are
ranked in the order of their marriages.

23
 Chapter 17:Customary Marriages
❖ The patrimonial consequences of a customary marriage
❖ Polygamous customary marriage entered into after the RCMA
⮚ A court-approved contract
✔ In terms of section 7(6) of the Act, a husband who wishes to contract another customary
marriage has to apply to court to approve a written contract which will regulate the future
matrimonial property system of his marriages.
✔ If first marriage is ICOP , the court terminates that system , OCOP is more suitable for
polygamous marriages husband and each wife retain their estates
✔ However, at dissolution of the marriage by divorce ,the court is empowered to effect an
equitable distribution of property ,by taking into account all the relevant circumstances of
the family groups which would be affected if the application is granted
✔ The court may allow amendments to the terms of the contract, grant the order subject to any
condition it may deem just
✔ Court can refuse the application if in its opinion that the interest of any of the parties would
not be safeguarded by the proposed contract.

24
 Chapter 17:Customary Marriages
❖ Alteration of the matrimonial property system
❖ Marriages entered into before the coming into operation of the Act Section 7(4)
of the RCMA authorises spouses who entered into a customary marriage before
Act to alter their matrimonial property system with the court’s permission
❖ Application to be done by all parties involved, thus husband with many wives they
should jointly apply
❖ The requirements are:
1. There are sound reasons for the proposed change.
2. Sufficient written notice has been given to all creditors to whom the
spouses owe more than R500 (or such amount as the Minister of Justice and
Constitutional Development (now the Minister of Justice and Correctional
Services) may determine in the Government Gazette).
3. No other person will be prejudiced by the proposed change

25
 Chapter 17:Customary Marriages
❖ Alteration of the matrimonial property system

❖ Marriages entered into after the Act came into operation provides that spouses
who enter into a monogamous customary marriage after the coming into
operation of the Act may apply to court in terms of section 21(1) of the
Matrimonial Property Act for permission to change their matrimonial property
system.
❖ The relevant provision of the Recognition of Customary Marriages Act is expressly
limited to monogamous customary marriages,
❖ spouses in polygynous customary marriages which were concluded after the
coming into operation of the Act cannot invoke the same mechanism to change
their matrimonial property system

26
 Chapter 17:Customary Marriages

A customary marriage a minor entered into without consent

➢ The patrimonial consequences if the marriage is set aside

May be dissolved by the Applicable legislation

court upon application
by minor or Section 8(4)(a) of the
guardian/parent RCMA
Section 24(1) of the MPA 27
 Chapter 17:Customary Marriages
A customary marriage a minor entered into without consent
➢ The patrimonial consequences of the marriage is not set aside
• It is unclear what the patrimonial consequences are if unassisted minor’s customary marriage is not set
aside

Legislation
• Section 24 of the MPA
• Section 7(3) RCMA – Monogamous Marriages
• Section 7(6) RCMA – Polygamous Marriages

Codes of Zulu
• deals with nullity of customary marriage
• If marriage does not comply with requirements – marriage is void
28
Chapter 17:Customary Marriages

❖ The wife’s status

✔ The Act abolishes the wife’s status of

perpetual minority and her husband’s
guardianship over her in all customary
marriages
✔ Section 6 provides that a wife has the
same status as her husband regardless
of the number of wives the husband
has

29
 Chapter 17:Customary Marriages
❖ Dissolution of customary marriage by divorce
✔ Act permits dissolution only on the ground of the irretrievable breakdown of the
marriage
✔ The financial consequences of divorce in respect of a customary marriage are the
same as those which apply to a civil marriage or civil union.
✔ When granting a decree for the dissolution of a customary marriage, the court
has the powers contemplated in section 7, 8, and 10 of the Divorce Act
and section 24(1) of the Mediation in Certain Divorce Matters Act.
✔ This means that the court has the same powers to regulate the financial
consequences of divorce as a court has when a civil marriage is dissolved through
divorce

30
 Chapter 17:Customary Marriages
❖ Dissolution of customary marriage by divorce

⮚ What are the courts empowered to do:

✔ incorporate a settlement agreement into the divorce order,
✔ to grant a post-divorce maintenance order for the benefit of a spouse,
✔ to grant a redistribution of assets if the marriage was subject to a total
separation of property,
✔ to order a forfeiture of patrimonial benefits and to make an order
regarding costs.
✔ The court may at a later stage revoke vary or suspend a maintenance
order or an order regarding the spouse’s children.
❖ In the case of a husband who is a spouse in more than one
customary marriage, the court is required to take all relevant factors into
consideration and to make any equitable order that it deems just

31
 Chapter 17:Customary Marriages
❖ Dissolution of customary marriage by divorce
⮚ The interests of the children of divorcing parents
✔ court to make an order regarding the guardianship or care of a minor
child of a customary marriage
✔ a Family Advocate must investigate the welfare of the child and furnish
the court with a report and recommendations.
✔ After considering the report and recommendations, the court may
make any order it deems fit regarding guardianship, care, contact and
maintenance
⮚ Maintenance
✔ The court to take into account any provision or arrangement that has
been made in accordance with customary law

32
 Chapter 17:Customary Marriages
❖ Dissolution of customary marriage by divorce
⮚ Joinder
✔ The court may order that any person who, in the court’s opinion, has a
sufficient interest in the matter be joined in the divorce proceedings.
✔ Examples of such persons are any or all of the husband’s other wives and the
wife’s father as lobolo holder
⮚ Jurisdiction (who can hear the matter)
✔ High Court or
✔ Regional Division of the Magistrate’s Court

33
 Chapter 17:Customary Marriages
❖ Dissolution of customary marriage by death

⮚ The Act is silent on termination of a customary marriage by death, except of

KwaZulu-Natal
⮚ According to the KZN
✔ a customary marriage is not necessarily terminated by a spouse’s death
✔ husband may take another woman to produce (further) children for the
deceased’s house (sororate-but in no child was born by the deceased)
✔ the custom allows the deceased husband to be replaced by one of his
✔ paternal male relatives and children the woman has with this man is deemed
to be her deceased husband’s child.
⮚ Hence giving a presumption that death does not inevitably terminate a
customary marriage

34
 Chapter 17:Customary Marriages
❖ Dissolution of customary marriage by death

⮚ a surviving spouse in any customary marriage can institute a

claim against the estate of his or her deceased spouse for his
or her reasonable maintenance needs until his or her death
or remarriage
⮚ In a polygynous marriage, the fact of there being several
wives will obviously be relevant in determining each wife’s
reasonable maintenance needs

35
 Chapter 17:Customary Marriages

❖ The co-existence of customary marriage and civil marriage or

civil union
⮚ A subsequent customary marriage by a party to a civil marriage or civil union
✔ a person who is a party to a civil marriage or a civil union may not enter into a
customary marriage during the subsistence of the civil marriage or civil union.
✔ This rule applies even if the parties to the civil marriage or civil union want to enter
into a customary marriage with each other
✔ Therefore, subsequent customary marriage is void
⮚ A subsequent civil marriage or civil union by a party to a customary marriage
✔ the parties to a customary marriage are not “competent” to enter into a civil
marriage with another person but can enter into one with each other
✔ If the parties were in polygamous marriage then the other marriages should be
dissolved

36
 MS C MOKOENA AND MR J MOKOENA GOT MARRIED IN TERMS OF XITSONGA
CUSTOMARIES ON 7 DECEMBER 2000. AT THE TIME OF THEIR MARRIAGE MS C MOKOENA
HAD JUST TURNED 18 YEARS OF AGE. THEY CELEBRATED THEIR MARRIAGE IN TERMS OF
THE XITSONGA CUSTOMS. MR J MOKOENA DID NOT PAY THE LOBOLO PRIOR TO THE
CELEBRATION OF THE WEDDING, BUT THE LOBOLA NEGOTIATIONS WERE FINALISED
PRIOR TO THE WEDDING.

Test your ON 15 JANUARY 2023 MS C MOKOENA WAS INFORMED THAT MR J MOKOENA TOLD A
knowledge PROSPECTIVE NEW SPOUSE THAT HE DOES NOT CONSIDER HIS CUSTOMARY MARRIAGE
WITH MS C MOKOENA AS A VALID CUSTOMARY MARRIAGE AS IT WAS NOT REGISTERED
AND LOBOLA WAS NOT PAID.

ADVISE MS C MOKOENA :
1.AS TO WHETHER HER MARRIAGE WITH MR J MOKOENA IS A VALID CUSTOMARY
MARRIAGE and
2. IF Mr C MOKOENA NEEDS HER CONSENT TO ENTER INTO ANOTHER MARRIAGE
REFER TO THE RELEVANT CASELAW & LEGISLATION.

37
Answer to the question

Law / Legislation / Legal Authority

Recognition of Customary Marriages Act
L

38
Answer to the question

Law / Legislation / Legal Authority - Continue

Recognition of Customary Marriages Act
L

39
Answer to the question

Law / Legislation / Legal Authority - Continue

Recognition of Customary Marriages Act
L

40
Answer to the question

Application of the Law to the Facts

In terms of
the
Both parties are above the age of 18 A
requirement The marriage was celebrated in terms of Xitsonga customs
s for a valid
customary
marriage: Lobola was negotiated and payment thereof is not compulsory

failure to register the marriage does not affect the validity of the marriage

41
Answer to the question

Conclusion
Tips – never bring in new information into your conclusion
C
From the abovementioned, the marriage between the parties have
met the requirements as set out in the Recognition of Customary
Marriages Act and therefor it is a valid customary marriage.

42
Answer to the question 2 ANSWER IS IN TEXTBOOK!

• In MM v MN 2013 (4) SA 415 (CC) the Constitutional Court had to decide whether a
husband may enter into another customary marriage without his first wife’s consent.

• The Customary Marriage Act is silent as to whether express consent is needed however, in
terms of Xitsonga customary law, consent is needed .

• The first wife must therefore consent to the second marriage.

43
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