G52 Customary marriages entered into after the commencement of the Act when
neither spouse is already in a customary marriage
Intending spouses, neither of whom is a spouse in an existing customary marriage, may enter into
an antenuptial contract regulating the matrimonial property system of their forthcoming customary
marriage.1 If they do not, their customary marriage is in community of property and of profit and
loss2 and chapter III and sections 18, 19, 20 and 24 of chapter IV of the Matrimonial Property Act,
1984 are applicable.3 If the husband does not have more than one wife section 21 of the
Matrimonial Property Act 1984 is applicable, that is, the matrimonial property system may be
changed by application to a court.4 As mentioned in paragraph G49 supra the court considering
such an application will need to bear in mind the distinction between household property and
house property.5
S 7(2).
Ibid.
S 7(3).
1
2
3
4
S 7(4).
A6 Heterosexual cohabitation1
Parties are cohabiting if they have a stable relationship in which they cohabit as married persons.
Heterosexual cohabitation differs from marriage both as regards the way it is entered into and as
regards the consequences it entails.
Cohabitation is entered into by agreement, express or implied. It may be combined with or
coincide with a religious ceremony.2 The absence of the formalities required for marriage may be
deliberate or accidental. If it is deliberate, then the parties have elected to enter into a relationship
lacking the attributes of a marriage, except in so far as they may have agreed otherwise and in so
far as the law permits them to do so.
The consequences of cohabitation differ from those of marriage in the following respects:
(a)
In the case of cohabitation there is no reciprocal duty of support and therefore no claim
for maintenance following separation. No claim for the loss of support can be instituted in
the case where the death of the breadwinner is caused unlawfully.
(b)
The children of cohabitees stand in a parent-child relationship with their mothers. The
fathers are bound to support them but enjoy no parental rights.3
(c)
Cohabitees keep their separate estates unless they provide otherwise by contract. People
who enter into a relationship according to some recognised religious norm can enter into
an agreement whereby they operate a partnership either of all property or of some other
specified property such as income.4 Whether other cohabitees can enter into similar
agreements will be considered below.
(d)
Cohabitees can terminate their relationship by agreement or even unilaterally with or
without good reason. A court order is unnecessary and cannot be claimed.
(e)
Cohabitees can only inherit from one another by virtue of a testamentary disposition.
Since the law will not normally attach any of the consequences of marriage to the cohabitation
relationship, the question is whether the parties can achieve the same results by agreement or
otherwise. They can certainly maintain one another and a joint household as though they were
married. Whether a contract to maintain one another upon separation is valid, is an open question,
since such a contract could quite easily be interpreted as a contract to promote sexual immorality,
namely the cohabitation. And if there is a duty to maintain one another, then the question must be
asked whether the agreement is not too vague to be enforced, 5 or whether it is not contrary to
public policy because it cannot be varied by court order.6 In any event, such a contract, even if
valid, will not suffice to ground a claim for loss of support following the loss of a breadwinner.
The validity of contracts in respect of property regimes is also uncertain. 7 If they can be
entered into validly, then there can, according to the agreement, be a move away from separate
property and some sort of joint estate embracing all the property they choose to bring into it. 8 An
agreement to include property acquired after separation might, however, be considered void as
being against public policy.
There are several statutory enactments treating cohabitees as married partners.9
1
For a full treatment of the law relating to cohabitation, see the title COHABITATION. For a full treatment
of the law relating to same-sex cohabitation, see SAME-SEX LIFE PARTNERSHIPS, especially R2–R5.
2
Eg according to Muslim (Islamic) or Hindu rites.
3
While the natural father has the duty to maintain his offspring no other rights and duties are recognized
between them. Thus, the father has no inherent right of access to his extra-marital
children: S v S 1993 2 SA 200 (W); B v S 1993 2 SA 211 (W). The WLD decision in B v S was confirmed
on this point by the Appellate Division reported at 1995 3 SA 571 (A). Moreover, a right of access
cannot be regarded as a quid pro quo for the payment of maintenance: D v L 1990 1 SA 894 (W) 896I.
See also CHILDREN AND YOUNG PERSONS para E12.
4
Possible property to be shared will include capital profits, donations, inheritances, earnings, all other
income and property held before cohabitation commenced. See eg Ally v Dinath 1984 2 SA 451 (T).
5
Eg an agreement to pay maintenance, or an agreement to pay living and medical expenses. An
agreement to pay a fixed sum may need revision from time to time. In addition such an agreement for
a fixed sum might not meet the living styles of most cohabitees, who, like married couples, will have a
flexible arrangement while living together and only need a fixed amount after cohabitation ceases.
6
Maintenance orders can be varied, and this is in keeping with public policy. The courts have no powers
to vary maintenance agreements in general and the inability to do so will make the agreements rigid
and bring them into conflict with public policy.
7
Contracts which promote immorality or illegality have an injusta causa and are themselves contrary to
law (eg Richards v Guardian Assurance Co 1907 TH 24). Contracts which promote sexual immorality,
including cohabitation without marriage, might be affected by this rule.
8
See note 3 above.
9
Insolvency Act s 21(13); Workmen’s Compensation Act s 4(1)(b).
A7 The case of Islamic (Muslim) marriages
Muslim unions are potentially polygamous and in the past have not been recognised by South
African law.1 In the past, adherents of Islam have been forced to elect to marry monogamously
according to South African law or to marry polygamously according to Muslim customs 2 and be
party to a union classified by the law as cohabitation.3
However, the Constitutional Court has held that the word “spouse” in its ordinary meaning
includes parties to a Muslim marriage.4The court held in this case that such a reading was not
linguistically strained but corresponded to the way the word was generally understood and used
and that it was far more awkward from a linguistic point of view to exclude parties to a Muslim
marriage from the word “spouse” than to include them. The court held further that such historic
exclusion did not flow from the courts giving the word its ordinary meaning but from a
linguistically strained use of the word flowing from a particular cultural and racial approach: the
interpretation owed more to prejudice than it did to the English language and both the impact and
the intent of the restricted interpretation was discriminatory.5
In Daniel’s case, it was held that the discriminatory interpretations were no longer sustainable
in the light of the Constitution and in casu the constitutional values of equality, tolerance and
respect for diversity pointed strongly in favour of giving the word “spouse” a broad and inclusive
construction, more so because it corresponds with the ordinary meaning of the word. In this case,
the court held that a contextual analysis of the manner in which the word “spouse” is used in the
Intestate Succession Act6 and the Maintenance of Surviving Spouse Act7 reinforced this approach
since the purpose of these statutes was to provide relief for a vulnerable section of the population,
ie widows. The court stated that there was no reason why the equitable principles underlying the
statutes should not apply in the case of Muslim widows as they do to widows whose marriages
have been solemnised in terms of the Marriage Act. The court held further that the purpose of
these Acts would be frustrated should widows be excluded from protection just because the legal
form of their marriage happened to accord with Muslim tradition rather than the Marriage Act.8
The Constitutional Court held that the central issue in Daniel’s case was not whether the
marriage in question was lawful but whether the protection which the legislation intended widows
to enjoy should be withheld from relationships involving Muslim marriages. 9 The court stated that
it must be considered whether common sense and justice and the values of the Constitution would
best be served by including or excluding it from the protection provided and the answer had to be
in favour of an interpretation that was consistent with the ordinary meaning of the word “spouse”,
aligned itself with the spirit of the Constitution and furthered the objective of the Intestate
Succession Act10 and the Maintenance of Surviving Spouses Act.11
Thus the Constitutional Court concluded in Daniel’s case that the Maintenance of Surviving
Spouses Act12 and the Intestate Succession Act13 were not invalid and unconstitutional.14
If it is the intention of the parties to adhere to Islamic customs, then, if they contract a civil
marriage, they can combine it with an Islamic ceremony. They can also exclude community of
property by means of an antenuptial contract as well as the accrual system (assuming they wish to
do so), and make a testament which provides for succession according to Islamic law. If a divorce
takes place, they must apply for a court order and they may, in addition, observe the
requirements of Islamic custom. If they do not wish to contract a civil marriage, then they must, in
any event, enter into an agreement providing for the necessary incidents of Islamic property law
and make a testament introducing succession according to Islamic law. An agreement to marry
only one wife by Islamic custom, is not binding.15
1
Bronn v Frits Bronn’s Executors (1860) 3 S 313; R v Fatima 1912 TPD 59; Est Seedat v R (1916) 37
NLR 535; Seedat’s Executors v The Master (Natal) 1917 AD 302; Ebrahim Mohamed v Immigrants
Appeal Board 1928 TPD 439; Hamid v Minister of the Interior 1954 4 SA 241(T); Est Mehta v Acting
Master,
High
Court 1958 4 SA 252 (FSC);
In
re Est
Koshen 1960 2 SA 174 (SR); Ismail 1983 1 SA 1006 (A); Kalla v The Master 1995 1 SA 261 (T). In
Kalla’s case Van Dijkhorst J ventured the opinion (at 270E–F) that there was no substance in the
argument that Islamic polygamous marriages are no longer invalid in our law. The learned judge took
the view that if s 14(1) of the Constitution of the Republic of South Africa Act 200 of 1993 was intended
to validate such unions then the provisions of s 14(3) would have been unnecessary as this section (cf
Seedat’s case supra 309) provides for the compliance with special procedures for the validity of such
unions; cf Ryland v Edros [1996] 4 All SA 557 (C) in which Farlam J held that “it was inimical to all the
values of the new South Africa for one group to impose its values on others” and the court may enforce
claims based on a potentially polygamous marriage.
2
Islamic law has no validity in South Africa, but can be observed as a customary arrangement. See
generally ISLAMIC FAMILY LAW.
3
See the discussion in para A6 supra.
4
See Daniels v Campbell NO and others 2004 5 SA 331 (CC).
5
Para [19] at 341E–342B.
6
Act 81 of 1987.
7
Act 27 of 1990.
8
Paras [20], [21], [22] and [23] at 342C–D, 343C, 343D–E and 344D–E.
9
Para [25] at345C–E.
10
Act 81 of 1987.
11
Act 27 of 1990.
12
Act 27 of 1990.
13
Act 81 of 1987.
14
Para [37] at 349E–F.
Ismail supra.
15
Maintenance
Marriage creates a reciprocal duty of maintenance for the spouses 1 which exists until the marriage
is dissolved2 or cohabitation ceases. The expectation is that the parties will both contribute to the
common household where that is possible with the result that some division of roles can take place
and that the one will benefit from the contribution of the other.3
1
Shanahan (1907) 28 NLR 15; Pugh 1910 TPD 792; Union Government v Warneke 1911 AD 657 663
668; Wiebel v Wecke & Voights1933 SWA 123 135; Gildenhuys v Transvaal HinduEducational
Council 1938
WLD
260; Davis 1939
WLD
108; Oberholzer1947 3 SA 294 (O)
297; Edelstein 1952 3 SA 1 (A)
15; Rousseau
v
Cloete 1952 3 SA 703 (C)
709; Crouse 1954 2 SA 642 (O);Plotkin
v
Western
Assurance
Co
Ltd 1955 2 SA 385 (W); Woodhead 1955 3 SA 138 (SR) 139; Jodaiken 1978 1 SA 784 (W) 788;Park v
De Necker 1978 1 SA 1060 (N) 1061; Milnes v Protea Assurance Co Ltd 1978 3 SA 1006 (C); McKelvey
v Cowan NO1980 4 SA 525 (Z).
2
By death or divorce.
3
Inter-spousal maintenance is fully